June 19th, 2014
Member: National Academy of Elder Law Attorneys
Elder Law, Trust and Estate and Tax Sections of the New York State Bar Association
"Protecting The Assets of Seniors and Their Families for Thirty-eight Years"
I have spent 39 years helping seniors and their families protect their home and life savings by showing them how they can plan to qualify for Medicaid and actually qualifying them for Medicaid in the event of a medical emergency.
This document is intended to answer seventeen of the most frequently asked questions I am asked when I meet with families everyday who are interested in protecting their life savings and home from being wiped out to pay for nursing home costs and uncovered medical expenses. I hope you find them helpful in protecting your assets.
1. Q. WILL MEDICARE PAY FOR ALL OF MY NURSING HOME COSTS?
A. No. Medicare might provide payment for the first 20 days and part of the next 80 days of care in a nursing home, which usually results in a contribution by you of about $151 per day for the 80 days in central New York. This amounts to a personal private pay liability of about $12,080 for the 80 day period. http://www.medicare.gov/coverage/skilled-nursing-facility-care.html
You should know now if your health insurance will pay all or any part of the $151 per day copay. If not, you should consider applying for Medicaid to pick up the costs of the copay. If for any reason Medicare terminates your Medicare coverage, your medical insurance will probably not pay any part of your rehabilitation or skilled nursing care, leaving you to private pay the whole bill, usually $250 - $300+ per day, even though your insurance was paying all of the co pay while you were on Medicare. :(
There are strict Medicare conditions you must meet or private pay 100% of your own nursing home costs from day one:
1. You must be hospitalized for medically necessary inpatient hospital care for at least three consecutive calendar days, not counting the day of discharge. Caution: Being admitted for "observation" vs for "treatment" does not count toward the 3 days.
see http://www.kevinmd.com/blog/2014/02/observation-status-hospital-inpatient.html and
see http://www.foxnews.com/politics/2014/02/06/frustrating-medicare-catch-who-in-patient-at-hospital-and-who-under-observation/ and
see http://newoldage.blogs.nytimes.com/2014/01/10/fighting-observation-status/?_php=true&_type=blogs&_r=0 and
see http://www.medicareadvocacy.org/medicare-info/observation-status/ and
see Notice of Observation Services (A7257-A/S3926-A): This law requires hospitals to provide patients placed into observation services with oral and written notice within 24 hours of such placement that the patient is in observation status and not admitted to the hospital. The notice must include a statement that observation status may impact the patient's coverage for the hospital services, and advise the patient to contact his or her insurance plan to better understand the implications of being placed in observation status. The patient or their legal representative must sign the notice to acknowledge receipt. The New York State Department of Health is expected to develop guidance for hospitals regarding the written notice. The law went into effect on October 21, 2013, but the provisions governing notice do not go into effect until Monday, January 20, 2014. The text of the new law can be found at: http://open.nysenate.gov/legislation/bill/s3926a-2013
2. You must be admitted to a nursing home within 30 days of being discharged from the hospital.
3. The skilled nursing and/or skilled rehabilitative services are those furnished pursuant to physician's orders which: (a) require the skills of professional personnel such as a nurse or therapist; and (b) are provided either directly or under the supervision of such personnel. Please note that if you are receiving physical therapy and not "maintaining" your health, Medicare can cut you off and stop paying the nursing home, leaving you to pay all costs privately.
"Skilled" nursing care is really like extended hospital care, which is very different from "custodial care". Custodial care is that level of care which is merely assistance with what are known as the Activities of Daily Living (ADL's). This type of personal care, such as assistance with eating, bathing, dressing, toileting, transferring in and out of bed and supervision of medications usually do not require the assistance of professionally trained and licensed personnel. The Medicare program does not cover custodial care. Medicare does not provide protection for expenses of long-term health care such as:
A. The only government program that will pay for long-term care is Medicaid which is a jointly financed federal and state medical welfare program for the poor. If you qualify, Medicaid can cover nursing home costs, hospital care, home care, doctor bills and drug prescriptions. Medicaid can also cover Medicare deductibles and certain services that Medicare won't pay for.
3. Q. HOW CAN I PROTECT MY ASSETS FROM BEING WIPED OUT TO PAY FOR NURSING HOME COSTS?
A. The strategy most frequently used to protect and save the senior's assets is called the "impoverishment" strategy. Over a period of time, the senior gradually transfers (either outright or in Trust) and protects all or nearly all of his or her assets for the purpose of qualifying for the Medicaid Program. The "impoverishment" strategy or what is sometimes called "planned poverty" aims to: reduce the senior's assets below the minimum amount for Medicaid and
1. qualify him or her for Medicaid, thus
2. prevent the senior's assets from being used up to pay for uninsured health care expenses or nursing home costs, to
3. allow assets to be transferred to the children or other family members either during the senior's life or on the senior's death and
4. allow a healthy spouse to support themselves from assets that would otherwise be used to pay for their spouses nursing home costs.
The key to this planning is to make sure the senior can maintain exactly the same standard of living they have always had, while protecting assets they will not be spending during their lifetime.
4. Q. IF MY SPOUSE IS GOING INTO A NURSING HOME, CAN HE OR SHE TRANSFER ALL OF HIS OR HER ASSETS TO ME AND QUALIFY FOR MEDICAID?
A. No. To determine the eligibility of the spouse who is going into the nursing home to receive Medicaid, all of the non-exempt assets held by the husband or wife are added together and then the total divided equally between the spouses. To the extent the healthy spouse's half exceeds $74,820, in New York State, the Community Spouse Resource Allowance, (CSRA), the excess is attributed to the spouse going into the nursing home, thereby disqualifying the spouse going into the nursing home from receiving Medicaid. See the 2014 Resource and Income limits:http://www.health.ny.gov/health_care/medicaid/publications/gis/13ma022.htm
1. The spouse outside of the nursing home can retain $74,820 in New York State, the CSRA, in otherwise non-exclude able assets, plus homestead, plus personal property, plus a burial reserve, plus an automobile and set up certain burial space agreements for children, their spouses. brothers, sisters and their spouses, etc. pursuant to strict rules set forth in an Administrative Directive issued in July, 2011, which must be carefully followed. You can protect a substantial amount of your assets if burial space agreements for family members are used correctly. Interest on burial accounts is also exempt for Medicaid purposes.
2. While the Community Spouse Resource Allowance (CSRA) can be as high as $117,240 for seniors with a large amount of assets, this higher CSRA results in the payment of more of your assets for nursing home costs.
It is important to understand that under New York law:
1. A spouse is charged with legal responsibility for the other spouse's nursing home costs. This means that the income and resources of the healthy spouse referred to as the "community spouse" are considered as available to the Medicaid applicant spouse who is going into a nursing home and will be considered in determining if that spouse qualifies for Medicaid, and
2. If the healthy or community spouse has assets in excess of $74,820, those excess assets must be spent on medical care until the healthy spouse's assets are down to $74,820, and
3. If the healthy spouse's monthly income is more than $2,931 per month, the local Social Services Department will normally require 25% of the excess income to be spent on the nursing home costs of the spouse in the nursing home.
4. If the total income of both spouses does not exceed $2, 931 per month, all of the total income can go to the healthy spouse, even if their spouse is in a nursing home.
5. The healthy spouse can refuse to support the spouse in the nursing home, but then the Department of Social Services has the right to sue the healthy spouse to recover money it pays for the nursing home costs of the spouse in the nursing home. Doing what is called a "spousal refusal" may make sense in certain situations because the Medicaid rate is less than the private pay rate.
5. Q. HOW MUCH INCOME CAN I MAKE AND QUALIFY FOR MEDICAID
A. Any person over 64 whose net income is less than $721 per month, ($1,082 for a couple) per month, has satisfied the income means test for SSI related Medicaid. A single individual residing in a nursing home is permitted only $50 per month as a personal needs allowance, plus assets of $14,550 ($21,450 for a couple) plus a burial reserve. You can set up a trust with a funeral director to prepay funeral expenses and the money in the trust will not be counted as a resource for Medicaid as long as any money not spent on the funeral is turned over to the Medicaid upon the senior's death. Caution, at the current time, only the cost of the vault, burial container, opening and closing of the grave, plot, stone and casket are treated as exempt for the community spouse, as opposed to the Medicaid applicant. (Car and personal residence may be exempt.) The law provides that the spouse of an individual who has established his or her eligibility for Medicaid is entitled to a monthly income not to exceed $2,931 per month. See the 2014 Resource and Income Limits: http://www.health.ny.gov/health_care/medicaid/publications/gis/13ma022.htm
6. Q. CAN I TRANSFER MY ASSETS TO MY CHILDREN OR OTHER FAMILY MEMBERS JUST BEFORE I GO INTO A NURSING HOME?
A. LAW IN EFFECT AFTER FEBRUARY 8, 2006. There is a new law in effect after February 8th, 2006 that will change previous law drastically. The bottom line is that under the new law there is a five year look back period and any assets transferred within 5 years of you going into a nursing home and making a Medicaid application will disqualify you from receiving Medicaid until that penalty period has run. Under the old law before February 8th, 2006, there was a Thirty Six Month Rule (applicable to outright transfers) and a Sixty Month Rule (applicable to certain transfers in trust). Eligibility for medical benefits is denied for a period of time if the person going into the nursing home transferred assets for less than fair market value within thirty six or sixty months before his or her application for Medicaid benefits. Under the old law which applies to transfers made before February 8, 2006, the period of ineligibility begins the first day of the month following the month in which the resources were transferred and lasts for a number of months equal to the total value of the transferred property divided by the average cost of nursing home care to a private patient in that region of the state. (Currently $8,645 per month in central New York State and higher in other areas of New York). http://www.health.ny.gov/health_care/medicaid/publications/gis/14ma003.htm Under the new law, the penalty period doesn't start to run the first day of the month after the month of the transfer, it starts to run much later, in essence, the penalty period starts to run on the date you are both: 1. in the nursing home and 2. would otherwise qualify for Medicaid, if you hadn't made the transfers. So any transfers within 5 years of applying for Medicaid result in a penalty period preventing you from qualifying for Medicaid, calculated by taking the amount you transferred within 5 years and dividing it by $8,645 (in central NY). ********* UNDER THE NEW LAW ASSETS YOU TRANSFER 5 YEARS BEFORE YOU GET SICK CAN RESULT IN DISQUALIFICATION FOR MEDICAID!!! Under certain limited circumstances, some recent fair hearing decisions allow gifts within the 5 year look back period to avoid creating a penalty period. Note: yours facts may allow gifts within the 5 year period to be treated as gifts not made for the purpose of qualifying for Medicaid, if you fit under the facts of these recent fair hearing decisions.
Under the Medicaid transfer rules, certain resources and transfers are exempt. A home is exempt if transferred to one of the following:
1. a spouse,
2. a minor (under 21 child), or a blind or disabled child of the Medicaid applicant,
3. a brother or sister with an equity interest in the home who resided in the home one year before institutionalization,
4. a son or daughter who resided in the home two years and provided care that kept the Medicaid applicant from being institutionalized,
Certain other transfers of any resource are also exempt. For example: a transfer is exempt if the resource was transferred to a spouse or to another for the sole benefit of the spouse, or to a disabled child. A recent fair hearing decision held that a transfer of a residence to a trust established solely for the benefit of the disabled child would not qualify for this exemption and that the house had to be transferred directly to the disabled child.
7. Q. DOES IT MAKE A DIFFERENCE WHEN I APPLY FOR MEDICAID?
A. Extreme caution must be used is deciding when to file the Medicaid application, because there is no longer a "cap" on the waiting period equal to the look back period. If you apply for Medicaid too soon after a transfer, you may create a penalty period or period of ineligibility for Medicaid longer than 60 months. This means that if you apply one day too early, you could be prevented from qualifying for Medicaid for 5 or 10 years or more. If you applied at the appropriate time, which could be one day later, you could qualify immediately for Medicaid! What a difference a day can make?
8. Q. WHAT CAN BE DONE IF THE SENIOR IS ALREADY IN A NURSING HOME?
A. If the senior is already in a nursing home or about to go into one, he or she can retain enough assets to pay for sixty months care, transfer the balance and not apply for Medicaid until sixty months after the date on which the last asset transfers are completed. If the assets total less than the cost of 60 months of care, no transfers will help you. However use of a gift and promissory note between a senior and a family member, usually a child, can avoid the harsh new 5 year rule as discussed below under question 9.
9. Q. HOW CAN I AVOID THE NEW FIVE YEAR RULE ON GIFT TRANSFERS AFTER FEBRUARY 8, 2006?
A. One technique to avoid the new harsh 5 year rule on gift transfers after February 8th, 2006 is the use of a "Service Contract" between the senior and a child or other family member.
Most children help their mom and dad in numerous ways as they age by performing the services of a Geriatric Care Manager. It is very common for a child to handle their parents' finances if the parents become unable to handle their own finances by becoming their parents' Power of Attorney. These duties often include paying bills, reviewing mail, dealing with the parents' banker, lawyer, tax return preparer and financial planner. In addition, most children manage their parents' health care as their Health Care Proxy by taking their parents to the doctors, communicating with the doctors, hospitals, social workers and home health care aides. Many times the children arrange for supervision of the parents by home health care aides and visit their parents on a regular basis whether at home and during hospital visits. Many children also provide home care services themselves for their parents.
These valuable services are usually provided free of charge because of the love and affection we have for our parents. That presumption can be over come under certain court decisions, Administrative Directives and fair hearing decisions. Seniors can actually hire their children to provide these services on a contractual basis and pay the children substantial amounts of money to perform these Geriatric Care services. If the "Service Agreement" is properly drawn, meets all of Medicaid's legal requirements and is substantiated per Medicaid rules, then money paid to children for documented services pursuant to a binding written agreement entered into at the time of the rendition of the services the "Service Agreement" can completely avoid the new harsh 5 year rule and those payments can be protected immediately upon payment to the children without any penalty period imposed. Extreme caution should be used when employing this technique because DSS will disallow the use of service agreements when parents are in a nursing home. The use of a service agreement should only be considered if a parent is not in a nursing home.
Please note that the New York State Department of Health has issued a ruling that it will give credit for amounts paid to children for certain services rendered under a service agreement entered into prior to entry into a nursing home, which means these payments will be allowed and not treated as a gift transfer, thus escaping the 5 year rule. http://www.health.ny.gov/health_care/medicaid/publications/docs/gis/07ma019.pdf
I have won favorable fair hearing decisions using this technique, which has protected a substantial amount of money and avoided the 5 year rule for compensation for services rendered to parents prior to entry into a nursing home. It makes sense because the children are in fact providing valuable services to the parents anyway. This is an excellent planing tool that I recommend if used properly.
Another technique used in an emergency, where little or no planning has been done, is the use of a gift and a promissory note, where a parent makes a gift transfer of money to a child and then loans the child money that will be repaid to the parent over a short period of time. Without going into detail, the bottom line is that if done properly, about 1/2 of the parents assets can be protected in this type of emergency planning, sometimes much more. There have been three Fair Hearing Decisions out of Albany County that have allowed this planning technique and I have used it on a regular basis to protect substantial assets.
The key is planning and with proper planning there are avenues to use that can avoid the imposition of the new 5 year rule. Of course that depends on the facts of your situation, but without proper planning, assets transferred by gift within 5 years of entering a nursing home will usually result in disqualification from receiving Medicaid for a certain period of time, which usually can be financially devastating to the senior and their family.
10. Q. WHY SHOULD I USE A TRUST TO PROTECT MY ASSETS?
A. Assets are usually transferred to children or other family members either outright or in trusts. A trust is more desirable than an outright transfer to a child for many nontax and tax
a) You may have a bad relationship now or in the future with:
1. your child or
2. your son-in-law or daughter-in-law
b) Your child may:
However: If you place your home into an irrevocable trust that is a "grantor trust" for federal income tax purposes, in addition to protecting your house from nursing home costs, Section 121 of the Internal Revenue Code will apply and you can have your home sold completely tax free during your lifetime, avoiding the capital gains tax that would have been paid by your children if you had transferred the house to your children, instead of to a trust for the benefit of your children. :)
Your lawyer must have a thorough working knowledge of the tax law if you are doing Medicaid Planning or probate avoidance!
I had lunch this week with a CPA who told me that a lawyer drew a trust that left the children stuck with a $200,000 capital gains tax that could have been totally avoided and when the CPA told the lawyer this, the lawyer told the CPA: "well I don't know anything about taxes!" :(
Your lawyer needs to know the federal and state, estate, gift and income tax consequences of every recommendation they are making to you!
11. Q. IF I SET UP A TRUST SHOULD I HAVE ACCESS TO PRINCIPAL?
A. No. The Trustee should not be given discretion to distribute income or principal to the grantor Medicaid applicant. If you have access to the principal of a trust, it is considered an "available resource" for Medicaid purposes. If you have access to the income of the trust, it is considered an "available resource" for Medicaid purposes. With the right planning, you should only transfer resources you don't need to live on to the trust and should retain sufficient assets to pay for all of your income needs during your life, so you can maintain the same standard of living for the rest of your life. I can really help you with this planning and with the right planning, your life won't change a bit, but you will protect all of your assets that you wouldn't otherwise spend during your lifetime.
12. Q. HOW CAN I PROTECT MY HOUSE?
A. Transfer of residence - if the Medicaid applicant is married, he or she may retain a principal residence in which a spouse resides. The house is exempt property. However, if the applicant does not have a spouse or the spouse dies and other requirements are not met (which generally won't be met), the house is not exempt property and is subject to nursing home costs and will preclude Medicaid qualification. The Department of Social Services can file a lien against your personal residence.
A transfer of the residence to the children or to an irrevocable trust for the children, with the parent reserving a life estate has usually been advisable. This transfer to the children or to a trust for the children would completely protected the house from nursing home costs and uncovered medical expenses after the 5 year lookback period. Nothing really changes, the parent would keep the Star Exemption, Senior Citizen's Exemption and Veteran's Exemption. The parent would still pay for all of the taxes, repairs and insurance, but if they got sick, they wouldn't lose the house. They also gained the extra benefit of avoiding probate on the house at the time the parent passed away which means getting the house to the children without the legal fees, costs and delays of probate. The value of the life estate might still be at risk during the parent's life, but only if the house is sold while the parent was in a nursing home. If the house isn't sold during the parents' lifetime, the life estate expires on the parents' death. The retained life estate insures that the children would receive a "step up in basis" on the parent's death, which enables the children to sell the house income tax free on the parent's death and 100% of the value of the house is protected.
A transfer of the house to the children as opposed to a trust for the children is not advisable for the non tax and tax reasons discussed in Question 10 above.
13. Q. SHOULD I ALLOW THE NURSING HOME TO FILE A MEDICAID APPLICATION FOR ME?
A. The answer to this question is almost always no. I routinely meet with clients who say that they have met with the nursing home and the nursing home has specifically advised them that they do not need a lawyer, that they must file for Medicaid immediately and that they don't need to worry, the nursing home will take care of everything and file a Medicaid application for them.
In my opinion that this is a formula for disaster in many cases. First of all, when anyone tells you that you don't need a lawyer to protect your legal rights, your antenna should go up. Clearly, filing a Medicaid application and protecting your assets from being wiped out by nursing home costs and uncovered medical expenses involves many legal issues, analysis and many choices that you should make under the guidance of a skilled Elder Law Attorney who concentrates his or her practice in the area of Elder Law.
In my opinion, I humbly submit that nursing homes that give the above advice to nursing home residents and their families, are clearly doing them a disservice. You must understand that there is a clear conflict of interest between the nursing home and its residents. The nursing home is concerned about its own financial well-being. In
The documentation required to be submitted to Medicaid is quite extensive. If you fail to provide any single piece of that information to Medicaid or if the nursing home fails to provide that information on your behalf, you can expect a denial which results in a personal liability on the part of the nursing home resident to private pay the nursing home bill. I have seen several instances where nursing homes have filed an application for Medicaid which was subsequently denied and then the nursing home simply tells the family you must pay the bill now out of your own assets.You might say what if my mom or dad has no assets and there is nothing to protect, should I let the nursing home file a Medicaid application for me. The answer to that question is only if the application is going to be granted.
I was recently retained by a daughter whose mother had absolutely no assets. She was told by the nursing home that they would file the nursing home application and gave her a list of documents that she needed to provide to the nursing home to apply for Medicaid. She explained to the nursing home that her mother was totally unable to communicate with her due to her mom’s Alzheimer's. There was no power of attorney and the daughter was not legally authorized by the mother to obtain any documents and mom could not execute a power of attorney. The bottom line is that the daughter came to me because the nursing home sent her a $60,000 bill after the mother passed away and was telling the daughter that she needed to pay that bill. The nursing home also threatened to sue the daughter, her sister and her sister's husband.
Getting a nursing home to help you file a Medicaid application makes about as much sense as getting your tax advice from the Internal Revenue Service. When you file a Medicaid application, if it is granted, it goes retroactive back to 90 days prior to the date of filing the application. If the nursing home filed an application for you and fails to submit the appropriate documents or you don't qualify in the first place and Medicaid takes a long time to deny the application, you will have a private pay liability from the date of entry into the nursing home forward. Even if you do get legal assistance after the denial and the application is filed immediately after the denial, it will only go back 90 days prior to the date of the filing of the second application, leaving a potential private pay gap for which the nursing home resident is personally liable to pay.
It makes sense to get some legal advice from a qualified professional when you need a Medicaid application filed. I have seen several examples where nursing homes have pressured the children of nursing home residents to file for Medicaid immediately, even though they obviously did not qualify for Medicaid at the time.
The bottom line is that protecting your assets from uncovered medical expenses and nursing home costs requires the skill of qualified professional who is knowledgeable in this area of law and is your advocate looking out for your best interests, not the nursing homes. In my opinion, the nursing home does not meet those requirements.
14. Q. IS MY ANNUITY AND IRA PROTECTED FROM MEDICAID?
For an example, see this Pennsylvania case: Presbyterian Medical Center v Budd decided 8 29, 2003 http://caselaw.findlaw.com/pa-superior-court/1013360.html
16. Q. WHAT ARE THE MOST IMPORTANT FINANCIAL STATEMENTS MUST I PROVIDE TO MEDICAID WHEN I APPLY?
A. The documentation that must be provided to Medicaid when an application is submitted is simply voluminous and failure to provide even one page of one financial statement on one account in the past 60 months can result in a denial of your Medicaid application, resulting in a denial of Medicaid benefits and you private paying for all nursing home costs. Failure to provide and explain each and every check, cash withdrawal, deposit and expenditure over $1,000 over that past 60 months can result in the imposition of a penalty period delaying Medicaid eligibility, resulting in a private pay liability on your part. I cannot stress enough the importance of keeping all of your financial statements on all of your assets, including but limited not to bank accounts, CDs, stocks, mutual funds, brokerage accounts, IRAS, annuities, life insurance policies, 401ks, 403b's, deferred comp plans, 457 plans, profit sharing plans, savings bonds, 529 plans, etc. If you are missing even one page from any of these statements over the past 60 months, your application can be denied. :( If you fail to explain one check, one cash withdrawal, one deposit over $1,000 in the past 60 months, your application can be denied or your eligibility delayed and a penalty period imposed, resulting in your being liable to private pay your nursing home costs. :) KEEP ALL OF YOUR RECORDS AND STATEMENTS ON EVERY ACCOUNT AND ASSET YOU HAVE FOR 5 YEARS!!!! DONT THROW THEM AWAY! GETTING THEM FROM YOUR BANK OR BROKER OR INSURANCE COMPANY, ETC., MAY TAKE MONTHS, WHICH CAN RESULT IN DENIAL OR DELAY OF YOUR APPLICATION, COSTING YOU BETWEEN $8,500 TO $10,000 PER MONTH AT CURRENT RATES. :(
Please feel free to give me a call at (315) 733-0417 to schedule an appointment.
Warmest personal regards
PLEASE NOTE THAT THIS DOCUMENT IS NOT MEANT TO GIVE LEGAL ADVICE, BUT ONLY TO ANSWER CERTAIN FREQUENTLY ASKED QUESTIONS CONCERNING HOW TO PROTECT ASSETS FROM BEING WIPED OUT TO PAY FOR NURSING HOME COSTS. YOU ARE STRONGLY URGED TO CONSULT WITH AN ATTORNEY WHO IS COMPETENT IN THE AREA OF ELDER LAW, TAX AND ESTATE PLANNING PRIOR TO TAKING ANY STEPS TO PROTECT ASSETS SO THAT YOU WILL UNDERSTAND ALL OF THE RAMIFICATIONS OF YOUR ACTIONS, INCLUDING BUT NOT LIMITED TO ESTATE TAX, GIFT TAX, INCOME TAX, FINANCIAL AND ESTATE PLANNING CONSIDERATIONS.
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