Medicaid Qualification Volume 1 (The Medicaid Process) By Lenoard Mondschein

Transcription

1 Medicaid Qualification Volume 1 (The Medicaid Process) By Lenoard Mondschein Part 1: The Medicaid Application Process The Medicaid application process can be a difficult undertaking. Even nursing homes, who regularly file Medicaid applications, can encounter problems when applying or re-certifying a case for Medicaid. Here are a few basic tips to assist when applying for Medicaid. Since the Medicaid application is done on-line, the representative (family member, nursing home staff or Medicaid Attorney) needs to have all of the information assembled before he or she can begin the application process. Obtaining a copy of the application and reviewing the questions before filing out the application is a good way to ascertain what the Department of Children & Families (DCF) wants. Once the representative knows what DCF wants, he or she should write the answers down on one or two sheets of paper. This will make it easier to answer all of the questions without having to search through the file and slow down the process. In preparing to fill out a Medicaid application, the family member or nursing home should add up all countable assets. If the countable assets are over the Medicaid limit ($2, for a single person and $117,640 for a spouse living in the community), the family member or nursing home should not proceed, but, instead, contact an Elder Law Attorney immediately. Since there are strategies to help qualify an applicant for Medicaid when the applicant and/or his or her spouse have assets above the limit, an elder law attorney specializing in Medicaid Planning, can typically help. The family member or nursing home should look for a Board Certified elder law attorney in his or her area. Page!1

2 If the applicant s income exceeds the monthly limit ($2, IN 2014), a Qualified Income Trust is required to solve the problem under 42 U.S.C.1396(p)(d)4(B). The trust must be drafted by an attorney; and, as previously mentioned, a firm with a board certified elder law attorney should be consulted. Another question on the Medicaid application asks if any assets have been transferred in the last five (5) years. This is known as the 5 Year Look Back. If the answer is yes, the family member or nursing home should not continue to fill out the application. Instead, he or she should consult with a firm with a Board Certified Elder Law Attorney to discuss possible solutions to the problem. When filling out a Medicaid application, there can be many pitfalls which require expert advice. Whenever a family member or nursing home thinks he or she has such a problem, a firm with a Board Certified Elder Law Attorney should be consulted. Consulting a Board Certified Elder Law Attorney will assist in preventing the applicant from being rejected for Medicaid. Even the process itself, requiring the representative to work with DCF and the Department of Elder Affairs (DOEA), can be daunting for the layman. A law firm that specializes in Medicaid Planning in Miami-Dade, Broward and Monroe Counties, and files Medicaid applications every week has specific knowledge about filing an application and resolving problems that prevent an applicant from qualifying for Medicaid. If you are interested in finding out more about the Medicaid Application process, call the Elder Law Center of Mondschein and Mondschein, P.A. at for a FREE telephone consultation. Page!2

3 Part 2: How Soon Can I Qualify for Medicaid in Florida? One of the first questions that a prospective client asks me at an initial crisis Elder Law consultation is, How soon can I qualify for Medicaid? The answer to this question depends on the facts of the case. To begin with, is the applicant applying for Nursing Home Medicaid (ICP) or Community Medicaid such as Long Term Care Diversion which provides services in the home or an assisted living facility (ALF) and pays part of the cost of an ALF? If applying for ICP, then it depends on whether a Qualified Income Trust (QIT) is drafted or if the applicant is in hospice care. A QIT takes longer since the legal counsel of The Department of Children and Families (DCF) must review it. If the applicant is not in hospice care, a Level of Care (LOC) needs to be determined by The Department of Elder Affairs s CARES Unit (CARES). When hospice is involved, it is presumed that the applicant meets the LOC. If the applicant is in an ALF, the above factors apply as well, but in addition, there is a waiting list since these programs are Waiver programs which means that slots must open up when funding is available. ICP Medicaid always has funding. If the above is not confusing enough, the applicant s county may also determine how soon an application for Medicaid can be approved. Small counties have fewer cases than larger counties so the cases can be approved in few weeks rather than months. Miami-Dade County, for example, takes two to three months for a LOC in an ICP Medicaid case compared to Manatee County which takes a few weeks to issue a LOC. Page!3

4 A Board Certified Elder Law Attorney, experienced in crisis Medicaid planning can help avoid unnecessary delays in the approval process by filing the case correctly utilizing the appropriate strategies and documentation. He or she can also work effectively with the DCF Caseworker so that all questions are correctly and timely answered. Furthermore, a Board Certified Elder Law Attorney with years of experience working with DCF has credibility with government caseworkers which helps the process move along. In conclusion, the type of Medicaid case, county it is filed in, hospice status, and income level all factor into the time it will take to qualify for Medicaid in Florida. Who you hire to represent your loved one in this process is equally as important. In that respect, you should only hire a law firm that has a Florida Board Certified Elder Law Attorney, as it means that the person is a licensed attorney who has taken a specialized exam in Elder Law, in addition to a Bar Exam, and typically carries malpractice insurance.if you have any questions concerning Medicaid, call our office for a free telephone consultation: (305) Page!4

5 Medicaid Qualification Volume II (Protecting Your Home and Other Assets) By Lenoard Mondschein Part 1: Can the Nursing Home Take My Home As an Elder Law Attorney, I have been asked the following question on several occasions: Can the Nursing Home Take My Home? While the simple answer is No, it is also misleading. Elder Law is a complex practice, and simple answers can sometimes create a false sense of security. What follows is a more complete answer to the question posed above, in the hope that the reader may gain a more compete understanding of the issues involved in Florida Homestead property when a person is admitted to a skilled nursing facility. Homestead property in Florida is protected from creditors by the Florida Constitution. It is also an exempt asset when applying for Medicaid to pay for nursing home care. There is no limit to the value of Homestead real property, if there is a spouse or disabled child living in the home. If the Medicaid applicant is single, Homestead property is exempt up to the equity value of $543, in This figure will be raised by the government over time. Homestead property can be a single family structure, mobile home, condominium or co-op. A person can only have one Homestead. To be an exempt asset for Medicaid qualification, Homestead property must be located in the State of Florida or in one of 20 states which have a compact (treaty) with the State of Florida. When applying for Medicaid, the applicant, or his or her representative, must declare an intent to return home, at some time in the future, so that Homestead property will be an exempt asset. Although the Page!1

6 Department of Children and Families can be lax on requiring this statement, it is the best practice to declare this intention in writing. The real problem arises when the applicant s family can no longer afford to pay the taxes, insurance and sometimes mortgage on the Homestead property. While Homestead property is exempt while it is vacant, it loses its exempt status as Homestead property if it is sold or rented. When either of these events occur, further planning on an emergency basis must be initiated to solve this problem. For example, if the family of a nursing home resident wants to rent the Homestead real property, a special type of deed, known as a Ladybird Deed, needs to be drafted to protect the property from Medicaid Recovery when the applicant dies. In addition, the Homestead real property must be rented at fair rental value, and all expenses of the property such as taxes, insurance, mortgage payments and management must be proved. If the family wants to sell the Homestead real property, the proceeds must be immediately invested in non-countable resources. These decisions regarding Florida Homestead real property require the assistance of an Elder Law Attorney skilled in Homestead real property, taxes, estate and Medicaid planning. Typically, a board certified Elder Law Attorney can resolve these complex planning issues. Part 2: Can I Qualify for Medicaid if I Own a Vehicle? When a person applies for Medicaid, the inclusion of all or a portion of the value of vehicles, as well as the determination of value, differs according to the Medicaid program. Specifically, a person applying for Nursing Home Medicaid, who may or may not have a spouse and owns one or more vehicles, may Page!2

7 be rejected for Medicaid by the Department of Children and Families (DCF), unless the vehicle(s) in question, are exempted under the Medicaid rules. A vehicle is defined as any automobile, truck, motorcycle, etc., that is used to provide transportation, and incudes vehicles that are unregistered, inoperable or in need of repair. ESS Policy Manual, Section If the applicant owns one automobile, it can be excluded regardless of value, use, or whether the applicant has a spouse. ESS Policy Manual, Section All other automobiles are treated as non-liquid assets and counted as their equity value. Equity value is defined as the average trade-in value of the vehicle less any indebtedness. DCF will exclude the vehicle with the highest equity value, if there is more than one vehicle. Although only one automobile is excluded as a general rule, there is an exception for automobiles over seven years old. However, this exception does not apply to luxury cars, automobiles that are more than 25 years old as they may be considered classics or antiques, and customized or specially modified automobiles, except those modified for use by a handicapped person. DCF calculates the value of an automobile using the National Automobile Dealers Association book or NADA BOOK. If a vehicle is not listed in Southeastern Edition, NADA Book, the Official Used Car Guide or the Older Car Guide, an appraisal will be required or other evidence of value. If you are in need of help regarding Medicaid qualification and are unsure as to how DCF will count your assets or income, call The Elder Law Center of Mondschein and Mondschein, P.A. Miami office at (305) for a FREE telephone consultation. Page!3

8 Part 3: What Should I Do With Mother s Home When She is in a Nursing Home? What should I do with my mother s home when she is in an assisted living facility or a nursing home and is no longer living at home? This is one of the questions that I am frequently asked at initial consultations. Since all of mother s income will typically be needed to pay for assisted living, or be required to go to the nursing home, other sources of funds are needed to maintain the home. There is no one right answer here. Family dynamics, financial resources, and the proximity of the home to family members come into play. The typical options are leaving the home vacant, having a family member or tenant occupy the home, or selling the home. Each one of these options will be discussed in this article. The first option is to keep the home without renting it or having a family member move into it. Since the home is a Medicaid exemption (ESS Manual ), keeping the home will not affect Medicaid qualification. However, there is a limit on the equity value in the home of $552, in 2015 (ESS Manual Appendix A-9). This figure is indexed to increase each year. The problem with this option is paying the expenses of the home while it is vacant. Taxes, Insurance, maintenance, and sometimes mortgage payments make it difficult for children to maintain the home. Sometimes, if a family member moves into the home and covers all expenses, under certain circumstances the home will maintain its homestead status. It is critically important for the home to not lose its homestead exemption, since Medicaid Recovery can lien real property other than homestead property when a person dies. The second option is renting the home. Although mother s home will lose its homestead exemption when rented, mother will still qualify for Medicaid since rental property is another Medicaid exemption. This can be a good solution to the problem, but there are many rules that must be followed to qualify property as rental property to protect the home from Medicaid Recovery after the owner s death. There may also be a loss of income tax benefits if the home is sold. However, income tax benefits are Page!4

9 unimportant if the home is held until mother s death. There will be a step up in basis to fair market value at that time and, therefore, no income tax to the children on an immediate sale of the home. An Elder Law firm with a Board Certified Elder Law attorney can guide a family through these rules to avoid Medicaid disqualification and/or Medicaid Recovery. The third option to this dilemma is selling the home. This option raises the problem of what to do with the proceeds from the sale if mother applies for Medicaid to help pay for assisted living or to pay for a nursing home. Since a single applicant for Medicaid can have no more than $2, of countable resources, something will have to be done to protect the proceeds of the sale. While there are solutions to this problem as well, in most cases the best solution is to purchase Rental Property. If that solution is being seriously considered, it may not make any sense to sell the home in the first place, unless the home cannot be rented for some reason. The income tax consequences of a sale need to be considered as well. As explained in this article, there are solutions to the problem of what to do with mother s home when she is no longer living there, but each one has its own pluses and minuses. A careful analysis of the specific facts of the case and a clear understanding of the Medicaid, Real Property and Tax laws are essential for a positive outcome. If you would like more information on what you should do with mother s home, call the Elder Law Center of Mondschein and Mondshein, P.A. Miami-Dade County office at to arrange for a FREE telephone consultation. Page!5

10 Part 4: How Does Medicaid Regard Ownership of Joint Bank Accounts? When families meet with our Elder Law Attorneys, they sometimes ask if The Department of Children & Families (DCF) will regard some of the funds in a joint bank account as belonging to the family member and not the Medicaid applicant. On the surface it seems to make sense, but logic does not always translate into law. DCF s position on joint bank accounts is that all funds in a joint bank account with the Medicaid applicant, who has unrestricted access to the funds, belong to the Medicaid applicant. (ESS Manual ). This policy applies to checking accounts, savings accounts, certificate of deposit and other jointly owned financial accounts. This position by DCF can be challenged, if the joint owner on the account can prove that some or all of the funds were deposited by the joint account holder. Proving this challenge may be harder then it seems. The joint account holder needs to show some evidence that he or she deposited these funds. Pay stubs, cancelled checks or affidavits may be enough; but if the DCF Caseworker does not agree, a Fair Hearing may be required. At the Fair Hearing, evidence will again be required, and it is up to the Fair Hearing Officer (a DCF employee) to decide whether or not the evidence presented rebuts the presumption that all of the funds in the joint bank account belong to the applicant. If the Fair Hearing officer rules against the applicant, an appeal to the District Court of Appeals will be necessary. If a Fair Hearing or Appeal is required, it is strongly recommended that a Board Certified Elder Law Attorney is retained to represent the applicant in these matters. If you are applying for Medicaid in Miami, and joint bank accounts or other jointly held assets are involved, call The Elder Law Center of Mondschein and Mondschein, P.A. for a free telephone consultation. Page!6

11 Medicaid Qualification Volume III (Post Medicaid Eligibility) By Lenoard Mondschein Part 1: Medicaid Recovery (Debunking the Confusion) Qualifying for Medicaid assistance to pay for skilled nursing home care or a waiver program, is unfortunately not the end of the process. The Department of Children and Families (DCF) has additional requirements which, if not met, will result in future disqualifications of the Medicaid recipient. Some of those requirements are summarized below and should be kept in mind by the responsible person and the nursing home. The first requirement is the annual review. Each year DCF requires the applicant, through the responsible person or nursing home, to produce evidence of all assets owned by the Medicaid recipient as of the anniversary date of the original approval date. Only the assets of the institutionalized spouse, and not the community spouse, are counted. In fact, the community spouse could win the lottery after qualification, and the institutionalized spouse would still maintain Medicaid eligibility. Usually a bank statement is all that is needed, since the institutionalized spouse would have spent down his or her assets or disposed of them in some way prior to the original qualification. DCF will notify the responsible person or nursing home by mail of the annual review. Should that person fail to respond, DCF will require a new application. The next post-medicaid eligibility requirement focuses on the use of the Qualified Income Trust (QIT). This type of trust is used to allow the applicant to qualify for Medicaid if his or her income exceeds the Page!1

12 income cap for the year of qualification. For the 2012 calendar year, the income cap is $2, per month. DCF requires a review at least once a year of the financial dealings within the trust by reviewing the bank statements during the year. DCF wants to make sure that the amount representing the excess over the income limit is deposited each month into the trust and that it is paid out to the nursing home, community spouse, or used to pay for health insurance. DCF also wants to make sure that all increases in Social Security, Pension and/or other income are deposited in the trust. This usually becomes part of the patient responsibility unless it is diverted to the community spouse and/or used to pay health insurance. Lastly, DCF will verify that none of the money has been used for items other than those mentioned above. A final DCF requirement is called a change of circumstances. Whenever there is a change of circumstances, DCF requires the responsible person to notify the department within ten days of said event. This can be in the form of receipt of an inheritance by the institutionalized spouse, recovery from personal injury litigation, or a divorce. Sometimes the institutional spouse sells his or her home and receives cash proceeds. If DCF is not notified and later finds out, Medicaid will be terminated. In addition, a recovery claim will be sent to the responsible person seeking repayment for the period of time that the institutionalized person was in possession of assets in excess of the resource limit or, if transferred, then for the period of ineligibility resulting from the transfer. Obviously, if the institutionalized person receives disqualifying assets, it is incumbent upon the responsible person to seek the help of a qualified elder law attorney to assist in preserving Medicaid benefits. Unreported transfers may not only result in future Medicaid disqualification but may also cause criminal liability. The above post-medicaid eligibility requirements are not exclusive but represent the most common requirements needed to retain hard fought Medicaid benefits. Page!2

13 Part 2: What You Need to Know About Post-Medicaid Eligibility Qualifying for Medicaid assistance to pay for skilled nursing home care or a waiver program, is unfortunately not the end of the process. The Department of Children and Families (DCF) has additional requirements which, if not met, will result in future disqualifications of the Medicaid recipient. Some of those requirements are summarized below and should be kept in mind by the responsible person and the nursing home. The first requirement is the annual review. Each year DCF requires the applicant, through the responsible person or nursing home, to produce evidence of all assets owned by the Medicaid recipient as of the anniversary date of the original approval date. Only the assets of the institutionalized spouse, and not the community spouse, are counted. In fact, the community spouse could win the lottery after qualification, and the institutionalized spouse would still maintain Medicaid eligibility. Usually a bank statement is all that is needed, since the institutionalized spouse would have spent down his or her assets or disposed of them in some way prior to the original qualification. DCF will notify the responsible person or nursing home by mail of the annual review. Should that person fail to respond, DCF will require a new application. The next post-medicaid eligibility requirement focuses on the use of the Qualified Income Trust (QIT). This type of trust is used to allow the applicant to qualify for Medicaid if his or her income exceeds the income cap for the year of qualification. For the 2012 calendar year, the income cap is $2, per month. DCF requires a review at least once a year of the financial dealings within the trust by reviewing the bank statements during the year. DCF wants to make sure that the amount representing the excess over the income limit is deposited each month into the trust and that it is paid out to the nursing home, community spouse, or used to pay for health insurance. DCF also wants to make sure that all increases Page!3

14 in Social Security, Pension and/or other income are deposited in the trust. This usually becomes part of the patient responsibility unless it is diverted to the community spouse and/or used to pay health insurance. Lastly, DCF will verify that none of the money has been used for items other than those mentioned above. A final DCF requirement is called a change of circumstances. Whenever there is a change of circumstances, DCF requires the responsible person to notify the department within ten days of said event. This can be in the form of receipt of an inheritance by the institutionalized spouse, recovery from personal injury litigation, or a divorce. Sometimes the institutional spouse sells his or her home and receives cash proceeds. If DCF is not notified and later finds out, Medicaid will be terminated. In addition, a recovery claim will be sent to the responsible person seeking repayment for the period of time that the institutionalized person was in possession of assets in excess of the resource limit or, if transferred, then for the period of ineligibility resulting from the transfer. Obviously, if the institutionalized person receives disqualifying assets, it is incumbent upon the responsible person to seek the help of a qualified elder law attorney to assist in preserving Medicaid benefits. Unreported transfers may not only result in future Medicaid disqualification but may also cause criminal liability. The above post-medicaid eligibility requirements are not exclusive but represent the most common requirements needed to retain hard fought Medicaid benefits. Page!4

15 Part 3: How Can I Transition from a Nursing Home to an Assisted Living Facility or Back Home? Although most people move from their home or an assisted living facility (ALF) to a nursing home, in a minority of cases, the move happens in reverse. In those cases, when a person s physical or mental functions improve, it is sometimes possible for a nursing home resident to transition back into the community, either at home or in an ALF. The greatest obstacle to returning to the community, other than an individual s physical or mental condition, is the cost of care. Under the 1999 United States Supreme Court case of Olmstead vs. Zimring (527 U.S. 481), the Supreme Court held that institutionalization based on disability, when a person qualified for in-home care that was readily available, amounted to discrimination by segregation in violation of Title II of The Americans With Disabilities Act (ADA). Accordingly, Florida enacted F.S in This statute authorized The Agency For Health Care Administration (AHCA) and The Department of Elder Affairs (DOEA) to create a procedure for persons in nursing homes to transition back into the community with priority placement for services, if they could function in a less costly setting than a nursing home. As a result of the above Florida statute and subsequent litigation, AHCA and DOEA developed a procedure known as The 60-day Transition Rule. This rule allows for services to be provided to a person who can transition from a nursing home to an ALF or back home after spending 60 consecutive days in the nursing home. The most significant aspect of this rule is that the person does not have to go on a waiting list as is the normal procedure to obtain Home and Community Based Services (HCBS), which in some cases take more than one year. Page!5

16 Unfortunately, most of the available information on this program is incorrect, and in most cases, persons who could avail themselves of this program do not even know it exists. While Elder Law Attorneys have helped many persons transition back into the community under this program, AHCA and DOEA need to disseminate better and more accurate information on this program to Nursing Homes, Assisted Living Facilities, Aging Resource Centers, and Community Centers. If this program can help you or a loved one transition from a nursing home back to the community, contact The Elder Law Center of Mondschein and Mondschein, P.A. for assistance. As an Elder Law firm with a Board Certified Elder Law Attorney on staff, we can guide you through this process and help bring you or your loved one back into the community. F.S was repealed in October, The future of the 60-day Transition Rule is unclear as of February, If you want more information about the Nursing Home Transition Program, call our Miami office for a free telephone consultation: (305) Page!6