ELDER LAW/LONG TERM HEALTH CARE AND MEDICAID PLANNING

Elder Law/Long Term Health Care and Medicaid Planning

Whether in advance of clients needing long term care, or when they are in crisis, we advise on the programmatic and financial rules for choosing between, obtaining and financing long term care.

The attorneys in our group regularly counsel clients on:

  • The differing levels of long term care and how Medicare and Medicaid may help pay for them.
  • The use of long term care insurance as a component of planning long term care financing.
  • How family assets may be preserved for spouses and other family members and assist them to do so through the use of trusts, gifting and other planning techniques.

We assist with Medicaid applications, and represent our clients in administrative hearings and court appeals if benefits are wrongfully denied, or if claims are made for recoveries by Medicaid or nursing homes. For younger individuals with special needs, we can help them or their families establish supplemental needs trusts so savings or inheritances will be available for those needs without disqualifying them from public benefits.

Elder Law Updates

November 1, 2022

DOES THE HOME NEED TO BE PROTECTED FROM LONG TERM CARE COSTS?

If you or a loved-one need to apply for Medicaid benefits, you may be wondering if the house is protected or if it will have to be sold to pay for care. In order to be eligible for Medicaid coverage, you must have less than $16,800 in total assets. However, sometimes our clients hear that they can get Medicaid even if they still own their own home. The house is indeed considered as an exempt asset, and therefore not part of the Medicaid-applicant's limited resource allowance, so long as the Medicaid-applicant expresses an intention to return home (regardless of actual ability to do so). This means that a Medicaid-applicant can get Medicaid coverage while still owning his or her own home.

Once the application is approved, however, the county is permitted to place a lien on the house! The lien is put in place so that the County can recover the amount paid for Medicaid benefits once the Medicaid recipient passes away or sells the house. The lien would get paid before the sale proceeds (assuming there are any left) can get paid to the Medicaid-recipient or to the beneficiaries of the Medicaid-recipient.

There are exceptions to this rule of course. If there is a spouse, a minor child, or a sibling with an equity interest in the house who has been residing there for at least one year, the County cannot put a lien on the property. However, even if a lien is not placed on the property, if the house is then an estate asset after the Medicaid-recipient passes away, the house, as well as any other assets in the estate, are vulnerable to Medicaid estate-recovery claims.

This is why it is important to plan for the house. There are things you can do in advance to protect the value of the house. This is why it is essential to speak with an attorney before making an application for Medicaid. If you are concerned about your home, please contact us to discuss your options.


Fall 2022 Elder Law Update:

It has been quite the busy year for our Elder Law Practice Group. So many heartbreaking cases of loved ones who have been hospitalized or who have declined significantly and now need care outside of their home. We have done our best throughout the year to provide high-quality legal services our clients, and to keep up with the constantly-changing laws and policies of the Medicaid Program.

There are some bits of good news regarding Medicaid. First and foremost, the much-talked-about implementation of a thirty-month lookback for transfers of assets applicable to home and community based Medicaid has been postponed and is likely not to take effect until at least 2024! This legislation was poorly thought through, as a lookback for Medicaid homecare really harms individuals and couples who are trying their best to keep their parents and spouses at home for as long as possible, supported by Medicaid-provided services. For example, the lookback would have penalized parents who had given funds to one or more of their children to help care for them at home. It is best that you consult with one of our attorneys if you would like to explore Medicaid as an option to help defray the costs of care for your loved one, as the Medicaid Program has many pitfalls and unintended consequences that may be avoidable if you have good counsel advising you about navigating through the maze of the Medicaid Program.

Another bit of really good news is that the Medicaid resource limit (which generally refers to the amount of savings you may have to qualify for Medicaid) will be raised substantially as of January 1st of next year (2023). The resource limit for an individual is currently $16,800, and is scheduled to be raised January 1st to well over $28,000! This will be a big benefit to our clients, especially those with modest savings. Almost all of the new clients we see are under the impression that the only way to qualify for Medicaid is to "spend down" to the Medicaid limit . As the Gershwin's said "It ain't necessarily so!" There are many legal avenues of approach to preserve assets for one's family. Our mantra has always been, and remains, that your loved one's health and safety remain paramount, but that the high cost of care requires planning to try to preserve assets (such as the family home) and at the same time ensure a payment source for the care that one needs. We will strive to keep you up to date on the latest developments in Elder Law and Medicaid. Stay safe, and we hope everyone has a good end to the year.



1-14-22

Happy New Year from the Medicaid Planning Group at Woods Oviatt Gilman!

With the New Year comes new Medicaid income and resource allowances. As of January 1, 2022, an applicant is eligible for Medicaid once he or she has less than $16,800 in countable assets (bank and financial accounts, stocks, bonds, non-retirement investments, the cash value of life insurance policies, etc.). The applicant's house, one vehicle, and retirement accounts continue to remain exempt from this total.

If the applicant has a spouse living in the community, the spouse must also be under what's called the community spouse resource allowance ("CSRA") in order for the applicant to be eligible for coverage. The CSRA to which the spouse is entitled ranges between $74,820 and the new 2022 maximum amount of $137,400. The CSRA for any particular couple depends upon how much the couple has in total, countable resources before the application is made for Medicaid. However, if the applicant or the spouse have excess resources, the applicant can still get Medicaid with proper planning strategies! Please reach out to us to discuss your options.

Once the applicant (and spouse, if the applicant is married) has resources below the resource allowance, he or she is eligible for Medicaid. The applicant's monthly income then determines how much will have to be paid toward the cost of care each month. If the applicant is single and in a nursing home, he or she can expect to pay almost all of his or her monthly income to the nursing home. There is a deduction for health insurance premiums and a $50 income allowance, but the rest must be contributed to his or her care.

If the applicant is married and in a nursing home, the same rules still apply, but there is an additional deduction on the monthly nursing home bill if the spouse has monthly income below $3,435 per month. If so, the spouse gets to keep enough of the applicant's monthly income to bring the spouse's total monthly income up to $3,435 per month. On the flip side, however, if the spouse has income above $3,435 per month, the spouse will be asked to contribute a quarter of the excess amount toward the applicant's monthly nursing home cost in addition to all of the applicant's income.

If the applicant is applying for Community Medicaid coverage outside of a nursing home setting, the monthly income allowance is $934 for a single applicant and $1,367 for a couple. Income in excess of this amount is referred to as a spenddown. In order for applicants to have active Medicaid coverage, applicants must "meet" the spenddown in one of three ways: (1) by paying an amount equal to the spenddown to the local department of social services each month; (2) paying or incurring medical bills equal to or greater than the spenddown each month; or (3) by putting the excess income into a pooled income trust each month. The money in the pooled trust can then be used to pay other, non-medical bills that the applicant has (utilities, rent, credit card bills, and other miscellaneous expenses). Feel free to contact us to learn more about how you can get Medicaid with excess income and protect that excess income by enrolling into a pooled income trust.

We also want to pass along an update regarding the anticipated lookback period of 30 months. We had previously written about this new 30-month lookback for Community Medicaid on December 10, 2020, and August 3, 2021. Here we are now in January of 2022 and the new lookback still has yet to go into effect. Due to the continuing Covid-19 Federal Emergency Declaration, we do not expect the new lookback to be implemented until, at the earliest, July 1st of this year (2022). We will certainly pass on any updates impacting planning as soon as we learn of them.

8-3-21

Greetings, and we hope you are enjoying the summer. These are certainly tenuous times for elder care in our community. The closing of the Hill Haven Nursing Home in Rochester and the transfer of patients to other facilities is just adding to an already strained and over- burdened long term care system. Under- staffing of aides and nurses in facilities, coupled with the staffing shortage for community based home health care, is creating a crisis of care in our community. There are no easy answers. Rest assured, however, that our Elder Law Practice Group stands ready to assist you in navigating through the increasingly complicated and pressure filled world of long term care planning.

As many of you know, a new Power of Attorney law was enacted and signed into law by Governor Cuomo, effective as of June 13th of this year. There are now new statutory forms for Powers of Attorney that must be utilized for all Powers of Attorney signed after June 13th. If the older forms are executed after June 13th, those forms will be deemed invalid! Under the new law, in addition to some other revisions and changes to the form itself, the major change involves the repeal of the Statutory Gifts Rider language. While this change will simplify the form to some extent, if the Principal wishes to give the Agent the authority to make gifts, specific language will now need to be included in the new form. This includes (among other things), if desired, the authorization for the agent to make gifts to himself/herself, to make changes to jointly owned bank accounts and also to change beneficiaries on retirement accounts.

New forms are being prepared by the State Bar Association and related committees and should be available for review and execution soon. The new Power of Attorney requires that the signature of the principal granting powers to his/her agents be witnessed by two individuals who are not named as agents. The signature must be notarized, but one of the witnesses may act as the notary. Powers of Attorney that were legally signed before June 13th will remain valid.

Kelly Gusmano and I wanted to also provide an update on the latest information regarding the new Medicaid thirty (30) month lookback provisions for community based long term care. We have previously written about these important changes (see our article from December 10, 2020). The State Department of Health ("DOH") has yet to issue any policy directives on this important new development in Medicaid eligibility, but, from our conversations with counsel for the DOH, we have learned that the proposed implementation date for the new lookback will be, at least as of now, January 1, 2022. That is important, as it means that, for any applications for community based home care Medicaid made before January 1, 2022, the lookback provisions will not apply. Planning for long term care is now more critical than ever! Below are some questions and answers we have put together regarding Medicaid planning and the new lookback period.

Is there anything new I should know about Medicaid and long term care planning?

    Yes- there are big changes on the horizon. Under current law, the Medicaid Program has a five year "lookback" period for transfers of assets, which penalizes Medicaid applicants who seek eligibility for care provided in a nursing home. There has never been a lookback which penalizes people seeking Medicaid for care at home. That is now changing. New York State is now planning to implement, as of January 1, 2022, a new lookback period of thirty months for those seeking eligibility for home care Medicaid services. The new lookback will apply to all uncompensated transfers of assets made after October 1, 2020.

    Can you please explain the lookback period?

      Yes- the lookback refers to the period of time before one files an application for Medicaid benefits to cover ones care. If an applicant (or the spouse of an applicant) has given away any money to his/her children of more than $2,000 at any one time, the Medicaid Program penalizes the applicant in a formula that depends upon the total amount of such gifts during the lookback. One can be penalized for buying a car for a child, paying off a mortgage for a nephew, deeding their house to their children, paying for college education for a grandchild, or even paying for a wedding of a child! The kicker is that the penalty cannot start until the Medicaid applicant has total savings under the Medicaid "resource" limit, which is only $15,950 for the year 2021. Please note that ones' home, one automobile and most notably retirement accounts such as IRAs are exempt assets, and do not count towards that resource limit. There are also protections for a spouse of an applicant that are designed to prevent the impoverishment of a spouse of a Medicaid applicant.

      Can you give an example of how this penalty works?

        Yes – For example, let say Mary Doe, a widow, lives in her home by herself. Mary has early onset Alzheimer's, and her sister Betty (who lives down the street) needs help in caring for Mary at home. Mary's condition has worsened as of late, and Betty has had to now quit her job to move in and care for Mary full time. Mary is extremely forgetful, and has wandered out of the house. Betty is stressed out, and her health is suffering as well. She can no longer provide care for her sister.

        Mary's sister wants to apply for home care Medicaid for Mary, and waits to apply until Mary's savings are below the $15,950 limit. One year ago, Mary gave one of her cars to her only grandson, and paid off his student loans as well. The value of the car and the paid off loans total $52,000. Under the new lookback period rules, Mary would be penalized for those "gifts" of $52,000, and would not be able to obtain Medicaid for approximately four months. As Betty can no longer provide care for her sister, and as Mary only has less than $15,000 to her name, Mary (and Betty) are in a very difficult position- really a crisis.

        Why is the new lookback for home care Medicaid significant?

          Because more and more New Yorkers are seeking to remain in their homes and to have care provided to them in familiar settings. Long term care can be very expensive. Round the clock care at home can costs upwards of $20,000 per month! That is why Medicaid funded home care is so important, and a critical component of the continuum of long term care. Medicaid can pay for aides and nurses to enable frail individuals to remain in their home, avoiding placement in a nursing home.

          What do you recommend at this time?

            For those who are concerned about the costs of long term care, now more than ever planning well in advance of a crisis like the one described above is very important. Our attorneys in our Elder Care Planning and Trusts and Estates Department can help put plans in place now to forestall or prevent a crisis of care from occurring. You and your loved ones health and safety are first and paramount in all of our planning. Whether it is creating a Trust or conducting an analysis of your readiness to meet the costs of long term care through Medicaid planning, our attorneys are prepared to assist you in any way they can.

            12-10-20

            Happy Holidays! What a crazy and difficult year for all of us who work in the field of elder care. Our heart goes out to all persons in facilities and their loved ones who have been unable to see each other. This is certainly a year all of us wish to put behind us.

            Kelly Gusmano and I wanted to provide an update on the latest information regarding the new lookback provisions for community based long term care. The State Department of Health ("DOH") has yet to issue any policy directives on this important new development in Medicaid eligibility, but, from our conversations with counsel for the DOH, we have been able to learn a few important bits of information. These are summarized as follows:

            1. The new transfer penalty provisions impose a thirty (30) month lookback for any and all transfers of assets made after October 1st, 2020 by individuals applying for community base long term care services ("CBLTC"). These new lookback provisions will be implemented as of April 1st, 2021. Please note that applications for TBI or NHTD waivered services are exempt from these new transfer provisions. That implementation date of April 1st may be pushed back further if the federal emergency declaration due to Covid-19 is extended. We have verbally confirmed with DOH that if an application for CBLTC services (that is an application with a Supplement A) is submitted to DSS prior to April 1st, these new transfer provisions will not apply. We are still awaiting written confirmation of this with DOH. Again, this only applies to transfers made after October 1, 2020, for applications made for CBLTC on or after April 1, 2021.
            2. The DOH will be developing a new form for the applicant's primary care physician to sign indicating that the applicant is in need of CBLTC services, to submit with the application and Supplement A. As of today, we have no information regarding the content of that form.
            3. The funding of a pooled trust with a recipient's spenddown (very common and necessary in order to maintain services in the community) will be treated as a transfer of assets! It is unlikely that a penalty will be imposed, however, as the money transferred to the pooled trust is usually utilized in that very same month by paying bills of the recipient (thus, the transfer is fully compensated, and no penalty is assessed). This is an extremely complicated issue (particularly as to how DOH will treat monies sent to a pooled trust that are not utilized for the recipient in the month of receipt) that DOH will be working on in the coming months.
            4. A penalty for a transfer made during the lookback will start upon the submission of the Medicaid application with the Supplement A and the new MD form attesting to the need for CBLTC services.
            5. As of now, the new lookback provisions will indeed apply to "immediate need" applications ("OUCH!"). That means that a case examiner will have to review financial records submitted for the lookback much like applications submitted for nursing home care. We are really hopeful that DOH will change their mind on this, as there is no way DSS will review and approve an application within the short timeframe required of the immediate need process if these new provisions require a lookback review. We have suggested an attestation of the fact that no disqualifying transfers have been made subject to a later review of the records.

            We will wait and see if DOH listens to our position. We will work to keep you updated as we gain more clarity from DOH on these new Medicaid provisions.

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            Update 4-4-20

            Well, the State budget has passed, and there are big changes in store for Medicaid applicants and recipients, all of which deal with home and community based care.

            Beginning October 1st, 2020 (unless otherwise extended by the legislature), there will now be a thirty (30) month lookback period for all home and community base long term care services. This is essentially a brand new requirement, as the lookback (which is 60 months for nursing home care) previously solely applied to applicants for nursing homes. It is unclear at this time how the penalty for any transfers of assets within the lookback will be calculated. This requirement will only further delay the processing of Medicaid applications, and will, in our opinion, have a great impact on the ability of families to access Medicaid benefits to help keep their parents at home. Look for further details in the weeks to come.

            To further exacerbate the home care issues raised by this new requirement, the legislature has raised the bar to qualify one for Medicaid long term care services in the community. Previously, an applicant would need to show an inability to perform two out of six activities of daily living. The new requirement is three out of six (unless one has a diagnosis of Alzheimer's or dementia , than one out of six still sufficient).

            Finally, it has been the case that an individual's personal treating physician could authorize and recommend a certain number of care hours per day for a treatment plan for his/her patient, which could be submitted by an applicant for the Consumer Directed Personal Assistance Program (CDPAP) to access home care services. The CDPAP is, in many respects, the lifeblood of home care in upstate New Yok It now appears that such treatment plan must be made by "qualified independent physician" selected or approved by the Department of Health . Again, the details of how this will work have yet to be finalized, but having a State approved physician involved is, in our opinion, not good news for our clients who desperately need home care services.

            Despite all of this, our Elder Law/Medicaid Practice Group stands at the ready to assist our clients through these difficult times. If you or your loved ones are in need of planning for long term care, please do not hesitate to contact us.

            Our clients need us now more than ever, and we remain optimistic that better times are ahead for all of us!

            Update 3-22-20

            Our Elder Law/Medicaid Practice Group is closely monitoring budget negotiations in Albany that may greatly impact the Medicaid Program, and consequently the clients that we serve. The COVID-19 virus has only heightened tension over proposed cuts to the Medicaid Program. Both Rick Marchese and Rene Reixach are vigorously participating in lobbying efforts on behalf of the New York Chapter of the National Academy of Elder Law Attorneys, as well as the Elder Law and Special Needs Section of the New York State Bar Association, to try to help insure that the interests of Woods Oviatt Gilman clients, as well as the interests of all elderly and disabled New Yorkers, in receiving needed care in the community, are not compromised. We will post further updates as the budget process is finalized.


            Richard A. Marchese

            Elder Law/Long Term Health Care and Medicaid Planning Department Chair

            Direct: 585-987-2859
            Fax: 585-445-2359