I was honored to join Emmett Irwin, Esq. on his YouTube Channel, The Disability Benefits Channel, to discuss what an ABLE Account is, it’s limitations, and how it can help protect disabled individuals and their financial security.
If you have any questions about ABLE Accounts, send us an email at info@merobertslaw.com or call us at 443-470-9592.
There are several changes coming to Notary Law that will become effective October 1, 2021. One of the most important overall changes is that it will be a requirement that one takes a class in order to become a notary public. In addition to having to take a class, an individual must then pass a test in order to become a notary or to renew a commission. Some highlights of the new bill detail the changes and updates to remote notarizations, recordkeeping requirements, identification of a signer, competency requirements, as well as notarial act and certificate requirements. This is by no means an exhaustive list of the updates and changes that come with the new law, but this list provides a highlight of some of the significant changes that we will see moving forward.
Under the new law, notarial acts using communication technology for a remotely located individual are authorized. However, remote notarizations can NOT be performed with respect to a will as a will is defined in Maryland’s Estates and Trusts Article.[1] Under § 18-214 of the new law, a notary public can perform a notarial act if the notary public can identify the remotely located individual in any one of three ways[2]:
Has personal knowledge of the identity of the remotely located individual;
Has satisfactory evidence of the identity of the remotely located individual by verification on oath or affirmation from a credible witness appearing before and identified by the notary public under § 18-206(b) or as a remotely located individual; or [3]
Has obtained satisfactory evidence of the identity of the remotely located individual by:
Remote presentation of an identification credential described in § 18-206(b)[4]
Credential analysis of the identification credential; and
Identity proofing of the individual
More information on remote notarizations can be found in Senate Bill 0678 §§ 18-214,18-220, and 18-223. Specifically, in § 18-223 of the new law, there are outline for requirements for knowledge-based identity proofing, credential analysis of an identification credential, and using secure communications technology. [5]
A notary’s record is now referred to as a “journal” instead of the previously used term “fair register.” [6] In addition to the name change, the new law will enhance the recordkeeping requirements that were previously in place. The new law will require details of each notarial act including but not limited to:
The date and time of the notarial act
Description of the record presented for notarization
Name and address of the individuals for whom the notarial act is being performed
How the individuals were identified
And the fee charged
Further information provided by the law will state how the records must be stored, and how long the records must be stored. Records must be stored 10 years from the last entry in your journal.
A notary public must satisfactorily identify the person requesting a notarial act before performing the notarial act. There are several options in identifying a signer such as[7]:
Personal knowledge
Government-issued photo identification including driver’s license, passport, consular identification or government-issued non-driver identification card
Credible witness
Under the new law, a notary public is permitted to refuse to perform a notarial act if the notary is not satisfied that the individual executing the record is competent or has the capacity to execute the record or is not satisfied that the individual’s signature is knowingly and voluntarily made. [8]
Under §§ 18-204, 18-215, and 18-216 there are six types of notarial acts performed by notaries public. Further, the new law alters requirements for performing each of the acts. The acts are as follows[9]:
Acknowledgement;
Verification on oath or affirmation of a statement;
Witness or attest to a signature;
Certify or attest a copy of record;
Certify a tangible copy of an electronic record; and
Protest of a negotiable instrument.
Each notarial act will be required to have a notarial certificate. Performance requirements for each act are found in § 18-204. Notarial certificates and the requirements and instructions on how to affix them to the act are outlined in §§ 18-215 and 18-216. [10]
While these five topics are certainly not an exhaustive list of changes that will come out of SB 0678, this shows some of the more significant changes that we are likely to see. This article is not intended to serve as comprehensive guidance on the new law, but instead to highlight some of the important elements of the bill. It is important that each notary public review the full set of changes to notary law as outlined in SB 0678. [11]
For more information on notary services, notarial acts, and more, please contact M.E. Roberts Law, LLC.
[1] MD CODE ANN. EST. & TRUSTS §§ 1-101, 14.5-103 (2019)
[2] S.B. 0678 § 18-214 (Md. 2019)
[3] Id. § 18-206
[4] Id.
[5] Id. §§ 18-214,18-220, 18-223 (Md. 2019)
[6] Id. § 18-219 (Md. 2019)
[7] Id. § 18-206 (Md. 2019)
[8] Id. § 18-207 (Md. 2019)
[9] Id. §§ 18-204, 18-215, 18-216
[10] Id.
[11] Id.
Denis M. Egidio is a second-year law student at the University of Maryland Francis King Carey School of Law and a graduate of the University of Pittsburgh. Originally from Pittsburgh, Pennsylvania, Denis now lives in Baltimore, Maryland with his fiancée and two greyhounds.
Back in June 2019, I had the pleasure of joining Neil Tyra over at The Law Entrepreneur Podcast to discuss how I got into Guardianship work and invite you to check it out. Guardianship law is very important to my practice because it helps to protect the rights and property of our elder, disabled family members when they can no longer make decisions for themselves.
You can listen to the full episode here: http://thelawentrepreneur.com/episodes/ep-167-guardianship-law-101-margot-roberts/
In 1999, the Supreme Court ruled in Olmstead that unnecessary institutionalization of people with disabilities is a type of discrimination prohibited by the Americans with Disabilities Act.[1] In response, federal Medicaid rules have set standards to ensure Medicaid-funded home and community-based services (HCBS) are provided in settings that are not institutional in nature. HCBS waivers allow states to provide home and community-based services as an alternative to nursing facility care. HCBS waivers, especially during the COVID-19 pandemic, are essential for low-income, older adults to remain in their homes, where they are generally safer from the virus than in nursing homes and receive the services they need.
HCBS under a waiver are broadly defined by federal law; as a result, specific services and service levels vary from state-to-state, depending on states’ choices. Possible services include, but are not limited to, personal care, case management, homemaker services, home health aide services, adult day health care, assisted living, and respite care. HCBS under a waiver are not an entitlement, and a state may request permission from the Centers for Medicare & Medicaid Services (CMS) to limit enrollment to a set number of persons, to particular populations, and/or to specific regions of a state, if the federal government approves such limits.[2] The state remains subject to the requirement of the Americans with Disabilities Act that state programs not result in unnecessary institutionalization.
In response to the COVID-19 emergency, Medicaid programs serving beneficiaries with HCBS are encouraged to apply for administrative flexibility through Appendix K applications to strengthen HCBS programs, accelerate applications and approvals focused on HCBS, and make it easier for seniors and people with disabilities to get HCBS. States are receiving federal approval to modify their Medicaid HCBS waivers in a variety of ways. The changes include modifications to:
Access and eligibility (eliminating many procedural requirements);
Services (authorizing remote services);
Payment to family members and legal representatives;
Provider qualifications (eliminating or significantly modifying provider qualifications);
Processes for level of care evaluations and reassessments;
Rates (increasing payment rates and expanding provider reimbursement);
Person-centered service plans;
Incident reporting requirements;
Support during hospitalization; and
Expanding opportunities for self-direction (e.g., control over the training, hiring, and firing of care authority (employer authority); discretion over how to allocate an HCBS budget (budget authority), or both).[3]
As of May 26, 2020, 44 states had been approved for Appendix K amendments in response to COVID-19.[4] In Maryland, steps taken to make it easier to get HCBS include permitting virtual assessments and person-centered planning meetings, modifying processes for level-of-care evaluations, extending reassessment and revaluation dates, and modifying person-centered planning processes.[5] Maryland has expanded services and settings by adjusting service limits, changing prior authorizations, and allowing HCBS in alternative settings.[6] Finally, Maryland has used Appendix K to strengthen the HCBS workforce by expanding paid family caregiver limits, increasing payment rates, and making retainer provider payments.[7]
For more information on states’ approved Home and Community-Based Services Waivers or enhanced HCBS flexibility, contact M.E. Roberts Law, LLC.
[1] See, e.g., Olmstead v. L.C., 527 U.S. 581 (1999).
[2] 42 U.S.C. § 1396n(c)(3).
[3] Eric Carlson & Gelila Selassie, Changes in HCBS Programs in Response to COVID-19, National Center on Law & Elder Rights 1, 1–2 (May 2020), https://ncler.acl.gov/getattachment/Legal-Training/HCBS-Changes-Ch-Summary.pdf.aspx?lang=en-US.
[4] Medicaid, Emergency Preparedness and Response for Home and Community Based (HCBS) 1915(c) Waivers, https://www.medicaid.gov/resources-for-states/disaster-response-toolkit/home-community-based-services-public-health-emergencies/emergency-preparedness-and-response-for-home-and-community-based-hcbs-1915c-waivers/index.html (last visited May 26, 2020).
[5] Jessica Schubel, States Are Leveraging Medicaid to Respond to COVID-19, Table 1, Center on Budget and Policy Priorities, https://www.cbpp.org/research/health/states-are-leveraging-medicaid-to-respond-to-covid-19 (last visited May 20, 2020).
[6] Id.
[7] Id.
Alyssa Testo attends the University of Maryland Francis King Carey School of Law and will graduate in May 2021. At Maryland Carey Law, Alyssa is an Articles Editor for Maryland Law Review, a student attorney in the Low Income Taxpayer Clinic, a research assistant for Professor William J. Moon, and a member of the Women’s Bar Association and Business Law Society. She is particularly proud of her Note published in Volume 79 of Maryland Law Review. See Alyssa Testo, Verition Partners Master Fund, Ltd. v. Aruba Networks, Inc.: Deal Price as a Ceiling in Statutory Appraisal Actions, 79 MD. L. REV. (forthcoming 2020).
Alyssa has a Bachelor’s degree in Business Management from the University of Tampa, and prior to law school, Alyssa had nine years of experience in administrative and human resources work. She has a passion for world travel and, in her personal time, is an avid reader, yogi, and dog mom.
The COVID-19 pandemic has affected our lives in many ways. Restaurants are empty, grocery stores are full of people wearing masks, students are getting their lectures online, and businesses are working from home. One thing has remained constant; cyber hackers are going to try to access material that you want to keep private.
It is hard to say that the COVID-19 pandemic has produced any substantial benefit; it has crippled businesses, left many individuals without work, and taken loved ones from families. However, if there is any positive outcome that has come from it, it is that it has shown businesses that working from home is a viable option that they otherwise may not have considered; employee productivity is still high or, at worst, not as low as they may have expected. Further, it can be expected that employee satisfaction is at a much higher level as workers do not have to deal with their morning commute, fighting traffic or public transportation, and can work in the comfort of their own home. It is possible to imagine that working from home will be the new normal.
While working from home has many advantages, there are certain things that each individual and businesses alike should know. One of the most important disadvantages is that it is unlikely that employees will be accessing a secured network. Further, an individual may be accessing their work computer from home and moving those documents to their own personal computer and removing it from the network. With more and more people accessing files and working from home, there will likely be an increase in cyber-attacks.
COVID-19 did not change cyber-risk, it amplified it; more people accessing private information from unsecured networks increases the exposure to cyber-risk. These new working environments were created almost instantly, and companies did not have any time to properly prepare security.
The areas that we will most likely see affected are medicine, legal, and accounting; fields that deal with very personal information from all of their clients, such as medical records, bank accounts, credit card information, and social security numbers. It is up to the individuals that work at these businesses to maintain the confidentiality of their client’s information. It is on the businesses to ensure that their employees are not removing documents from secured networks and moving them into unsecured personal networks.
One solution is to protect your business with cyber-security insurance. This type of insurance protects businesses, customers, and employee data against fraud, extortion, and lawsuits. Many businesses have this type of insurance already but would greatly benefit from reaching out to their insurance provider to ensure that they are covered given the vastly different circumstances under which many individuals are currently working.
Ultimately, the most important way to protect our networks and protect client information is by staying informed. Individuals must be informed and be aware when they are potentially accessing data from a secured network. Companies and business owners must make sure to inform their employees of the nature and increased risk of cyber-attacks. The first step is to make sure everybody is aware and knowledgeable of the increased risk; only then can we start to move to the next measures of cyber-security. A plan or steps to ensure security is recommended for all businesses that intend for their employees to work remotely.
Denis M. Egidio is a second-year law student at the University of Maryland Francis King Carey School of Law and a graduate of the University of Pittsburgh. Originally from Pittsburgh, Pennsylvania, Denis now lives in Baltimore, Maryland with his fiancée and two greyhounds.