How to Apply for Medicaid and Avoid Penalties, 3d Edition

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1 How to Apply for Medicaid and Avoid Penalties, 3d Edition

2 Table of Contents What is Medicaid? THE THREE MYTHS OF MEDICAID... 4 HOW DO I QUALIFY FOR MEDICAID?... 9 THE FOUR BIGGEST MISTAKES PEOPLE MAKE WHEN APPLYING FOR MEDICAID MEDICAID FOR COMPARING MEDICARE TO MEDICAID Copywrite 2015, Voir Dire, LLC This is written by a lawyer, so here is the legalese telling you that you need your own lawyer. This Guide does not create an attorney/client relationship with the reader. Medicaid regulations change without notice and the information contained in this book should be treated as only a guide to Medicaid only in Colorado. You may not rely on the information in this book as an alternative to legal advice from your attorney or other professional legal services provider. If you have any specific questions about any legal matter you should consult your attorney or other professional legal services provider. You should never delay seeking legal advice, disregard legal advice, or commence or discontinue any legal action because of information in this booklet. ii

3 When my mother broke her hip and was about to be released from the hospital, I was handed a directory of providers. Fortunately, I knew what to do and the financial planning had been completed a long time ago. But most people do not know about Medicaid and myths abound in Nursing Homes, Recreation Centers, Assisted Living Facilities, and from neighbors and friends who heard something about it. There are many clients who come into my office terrified that they are going to lose everything because that is what they have been told. So here are the facts about Medicaid in Colorado. What is Medicaid? Every day in this country, thousands of people, mostly elderly, enter nursing homes. Some people will spend a few days or weeks in a nursing home in order to recover from an acute health situation. Others may spend up to a few months in the care facility before going home. There are many people, however, who never leave. They spend an average of 3½ years in the nursing home. Still others, although they may leave the nursing home, will, due to their physical or mental impairments, spend the rest of their lives in some other form of permanent care, such as assisted living, specialized Alzheimer's care, and so on. In the Denver Metro area, the average cost of a skilled nursing facility is about $8, per month. Various studies have shown that most unmarried patients going into a nursing home, will, on average, exhaust their life's savings in less than one year. So, for those who live long enough in care, it is not a question of will they end up on Medicaid, but only a question of when. Currently, 1

4 approximately 60% of all residents in skilled nursing facilities are receiving Medicaid. Medicaid law was passed by Congress in 1964 at the same time as the Medicare law; however, it was not available in all 50 states until Dental services were mandated in Until the Omnibus Reconciliation Act of 1993, there was no look back period. Congress instituted the look back period of 36 months in In the Deficit Reconciliation Act of 2005, the look back was changed to 60 months, or 5 years. Medicaid federal regulations are included in the United States Code of Federal Regulations as Title XIX of the Health Care Financing regulations. Medicaid was enacted to assist medically needy and low income families with access to health care. It is the only governmentally sponsored program that pays for long term health care and it increasingly being relied upon by the middle class to help pay for such care. A person has to qualify for Medicaid both medically and financially, except for the new Medicaid Expansion program discussed below. The financial eligibility for Medicaid is the most misunderstood aspect of the program, and the myths and mistakes in financial eligibility are discussed below. Remember that the financial eligibility for Medicaid and the estate recovery program for Medicaid are two different things. Be careful not to confuse the two financial programs. What is the Medicaid Expansion program? In the Affordable Care Act, more commonly known as Obamacare, each state can elect to initiate a plan to allow more 2

5 people to be insured based solely on income. Colorado elected to provide this program to its citizens beginning on January 1, Medicaid will expand to cover families and individuals whose income is less than 138% of the federal poverty level. This means that both individuals and families who need medical care will be able to apply for and receive such care. For the first three years, the United States government will cover 100% of the costs for the states. Starting in 2017, the individual states will pick up more of the cost, but still no more than 10% will be paid by the state. Those persons who are already covered by Medicaid will continue to receive the same benefits at the same levels. For 2015, the Federal Poverty Level is: Persons in family/household Poverty guideline 138% of Poverty Guideline For families/households with more than 8 persons, add $4,160 for each additional person. 1 $11,770 $16, $15,930 $21, $20,090 $27, $24,250 $33, $28,410 $39, $32,570 $44, $36,730 $50, $40,890 $56, The Federal Poverty Level is calculated each year by the United States Department of Health and Human Services. 3

6 THE THREE MYTHS OF MEDICAID Myth #1 The Nursing Home is going to take away the house. FALSE. The skilled nursing facilities have nothing to do with assets or Medicaid recovery. In Colorado, your house is not a countable asset for purposes of Medicaid qualification up to a value of $552, There are two scenarios you have to consider when doing Medicaid planning; the spouse of the person going into long term care still living in the house, or; the person going into a skilled facility is unmarried. Under the first scenario, the spouse (called the Community Spouse) will retain possession of the home without estate recovery. There are also rules about assets that may be transferred to the Community Spouse without penalty. 4

7 If the person who needs skilled care has no spouse at home, the house is not included as an asset if the person intends to return home. This does not mean that the elderly person can or will return home, but rather that they intend to return home. This intent precludes the home from being an asset for the purposes of Medicaid qualification, but does not protect it from estate recovery by Medicaid after the person passes away. There are other methods of protecting the home from estate recovery if planning is completed early enough or in special circumstances, such as a disabled child or adult child caregiver. You need to contact a qualified elder law attorney who is familiar with all state and federal regulations in order to plan before the crisis occurs. Myth #2 You can give away money or assets and Medicaid will never know. FALSE. Remember that the county and state offices determine Medicaid qualification and they will not qualify a person without an extensive disclosure of all bank and financial records. Titles to cars, deeds to land, and banking histories are all available to these offices and they are very thorough in their investigation. If the records do not track the funds perfectly, your family member will be denied benefits. If the office determines you were trying to defraud the Medicaid program, your family member could be denied permanently. One of the most common "do-it-yourself" Medicaid planning techniques is to just give assets away. Although making gifts can be a crucial part of an effective asset protection plan, doing so 5

8 without a plan, or, worse yet, without fully understanding the consequences and ramifications of such action, can be financially devastating, particularly since the passage of the Deficit Reduction Act (DRA) in Fortunately, the Medicaid rules which can "punish" an applicant for transferring or gifting assets in anticipation of Medicaid, also has, if you understand how the system works, significant opportunities for protecting assets. In many ways it's the "half empty or half full" concept. Some of these methods provide for protecting the assets even from estate recovery, while others will provide for the additional personal needs of your family members but be available for estate recovery after the person is gone. Sometimes families will attempt to "hide" assets, or at least conveniently "forget" about them. After all, how is Medicaid going to find out about that piece of property that you gave to your son last year? Keep in mind that failure to disclose assets in order to obtain Medicaid benefits is a crime (Medicaid fraud) and could result in prosecution, as well as legal action to recover the cost of benefits obtained fraudulently. It is just not something you want to even consider. Myth #3 If you have a Trust or Annuity, you are protected from Medicaid recovery. PARTIALLY TRUE. During the last two decades, the financial gurus across the nation declared that all senior citizens needed a Revocable Living Trust and millions of seniors followed that advice. In some cases, wellintentioned but mis-informed sales people led their clients to assume, or believe, that a Living Trust would somehow provide 6

9 their assets with protection from Medicaid. Although a properly drawn Living Trust may provide many benefits, protection from Medicaid is not one of them. Assets in a revocable Living Trust are still available to the patient and are therefore, in most cases, still considered as countable (for Medicaid qualification) resources and required to be spent down or eliminated in some other form before Medicaid will provide benefits. In addition, when trying to protect assets, there are certain conditions under which a Living Trust could cause the patient to lose up to 65% more of his/her assets than would have been necessary had there been no Living Trust in the first place. Some forms of properly drawn Irrevocable Trusts may protect some assets from Medicaid if they are instituted prior to the five year look back period. However, the trusts have to be properly drafted to have certain provisions that protect these assets from Medicaid qualification and may protect some of the assets from Medicaid Recovery. Annuities are another sales tactic for some sales people who do not understand how Medicaid works. There are Medicaid Compliant Annuities that protect some assets for the purposes of Medicaid qualification but not from estate recovery. If you have an annuity that is not Medicaid compliant, then the funds in that asset will be counted as available for the purposes of qualifying for Medicaid. In Colorado, the income from the annuity is also counted as part of the applicant s income regarding the income cap for qualification. If the applicant s monthly income is over $2, in 2015, then an income trust must be drafted in order to qualify for Medicaid. 7

10 The qualification numbers for 2013 are based upon the raises in Social Security Insurance levels. While a person was required to have an income below $2130 in 2013, the allowable income for 2015 is higher. If you or your family member is earning less than that figure, you may qualify for Medicaid based upon income. Your spouse s income is not included in qualification for Medicaid; only the applicant s income is included for the purpose of income qualification. If the applicant earns more than $2,199, but less than the average monthly cost of long term care, a qualified lawyer can draft an income only trust, also called a Miller Trust or a Utah Trust that will allow a person to be qualified for Medicaid based upon income. 8

11 1. HOW DO I QUALIFY FOR MEDICAID? The rules for establishing Medicaid eligibility are too extensive to be explained in detail here. Basically, eligibility is determined on the basis of both medical and financial standards. Medicaid is designed to be a form of welfare, not an entitlement program like Medicare. If a person who is applying is going into long term care, he/she is assumed to be qualified medically; however, a person living at home but in need of assistance for medical care or some types of home assistance must follow a different process to qualify medically for Medicaid assistance. You need to consult an Elder Law attorney who can guide you through the Medicaid maze and help you plan. 9

12 Countable Assets for Medicaid Qualification Any income from any source other than Social Security EXCEPT: A bona fide loan. Bona fide loans are loans, either private or commercial, which have a repayment agreement. Declaration of such loans is sufficient verification. Benefits received under Title VII, Nutrition Program for the Elderly, of the Older Americans Act. Title XVI (SSI) or Title II (Retirement Survivors or Disability Insurance) retroactive payments (lump sum) for nine months following receipt and the remainder countable as a resource thereafter. Home produce utilized for personal consumption. Experimental Housing Allowance Program (EHAP) payments made by HUD under section 23 of the U.S. Housing Act. Assistance from other agencies and organizations. Payments to volunteers serving as foster grandparents, senior health aids, or senior companions, and to persons serving in the Service Corps of Retired Executives (SCORE) and Active Corps of Executives (ACE) and any other program under Title I (VISTA). 10

13 Assets Not Countable For Medicaid Qualification Any gift made more than 60 months prior to the application for Medicaid. The applicant s principal residence if the equity is below $552,000.00; One automobile; Personal property and marital jewelry; Term Life Insurance Policies; Pre-paid burial plans; Assets held in an irrevocable trust established more than 5 years prior to the application; Assets held in a special needs trust; Assets in one of the state approved pooled trusts; Assets in a Medicaid Asset Protection Annuity (the income is counted, but the assets are not) There are special rules regarding these assets. You need to consult with an Elder Law attorney who knows the Medicaid regulations to assure that your planning conforms to the current Colorado Regulations. 11

14 THE FOUR BIGGEST MISTAKES PEOPLE MAKE WHEN APPLYING FOR MEDICAID Mistake #1 - Depending on the Wrong advice. Medicaid is such a complicated program that most of the people who come into my office are thoroughly confused about what rules apply to their situation. Unlike Medicare, which is totally Federal, Medicaid is a joint Federal-state program. Colorado operates its own Medicaid system, but this system must conform to Federal guidelines so Colorado can receive Federal funds, which pay for about half the state's Medicaid costs. The Medicaid eligibility rules differ from state to state, and they keep changing. Both the federal government and state governments seem to continually tinker with the eligibility requirements and restrictions. Recently, the Congressional 12

15 Super Committee was looking at ways to cut Medicaid spending as part of the deficit reduction plan. When they failed to provide a plan to Congress, the law put automatic cuts to Medicare that went into effect in In addition, there are aspects of the Affordable Health Care Act, sometimes called ObamaCare, that affect Medicaid and Medicare benefits unless Congress changes or overturns the legislation. The National Academy of Elder Law Attorneys has full time employees who track such legislation and provide us with a weekly report of rulings and regulations. The Colorado Bar Association Elder Law Section also tracks state wide changes for Elder Law attorneys in Colorado and participates in legislative hearings. A neighbor who recently moved here from Nebraska, Texas, or California cannot give you advice on Colorado Medicaid because the laws and regulations here are not the same. The nursing home billing director or Social worker can tell you about their experience with spend down plans, but may have no knowledge of the community spouse allowance or other options to maintain some assets for the applicant. I recently had a skilled nursing facility tell the wife of a resident that she would have to sell her house and all of that money plus the husband s income would then be paid to them. Not only did she not have to sell the house, but part of his income was transferred to her to help maintain the home while he was approved for Medicaid. The lawyer who did your will ten years ago may practice estate planning and tax law but know nothing about Medicaid. (To be fair, I refer my clients to ta x planning 13

16 lawyers or certified public accountants when they need that type of advice.) If you had diabetes, you wouldn t consult with an orthopedic surgeon about your problem. If you had leukemia, would you consult with dentist? When you need advice on legal issues, you need to be sure that the person you are talking is knowledgeable about the laws and regulations that apply to your situation. For Medicaid issues, you need to consult with an Elder Law attorney and preferably a member of the National Academy of Elder Law Attorneys. Mistake #2 - Expecting to be Paid Many adult children and grandchildren are caring for elderly parents. Many have given up working, sacrificing their income, in order to care for an elderly person. In some cases, this may lead to financial abuse but, in the majority of cases, the family member is giving up his or her life out of love for a parent. While some adult children can afford to stay at home to care for their parent, our current economic reality is that the adult children need an income as well. With proper planning, an adult child can be paid by the parent for their care by the use of a personal care contract. Such a contract must meet Medicaid regulations; otherwise it is counted as a transfer of assets for less than fair market consideration. 14

17 A Personal Care Contract has to be very specific as to what services are to be delivered and how the person is to be paid. If the caregiver is paid in advance, the contract has to provide for repayment of funds not used in case the caregiver quits or the parent passes away. A caregiver cannot be paid for doing any service that the skilled facility already provides. If services are to be provided as needed then other provisions have to spell out the average number of hours. In some states, there is a limit to the salary or wages that can be paid to a caregiver under a Personal Services contract. For instance, in Florida, any contract for more than $100,000 a year is automatically denied as a transfer of assets. I have some families who have provided care for many years and then expect to be paid at the time their parent goes into a skilled nursing facility. Others have asked to be paid from the estate after the parent passes away. In such cases, the caregiver will be denied because family members who provide services without a contract are considered to have provided care out of love for the parent, not based on a financial consideration. Requests for payment after the fact will be denied by Medicaid and the court. Mistake #3 - Failing to Plan is Planning to Fail. Every year in this country, hundreds of millions of dollars are lost to the nursing homes or other care facilities simply 15

18 because families stood back and did nothing. Those who are not in immediate need of long-term care may have the luxury of distributing or protecting their assets in advance. This way, when they do need long-term care, they will quickly qualify for Medicaid benefits. Giving general rules for so-called "Medicaid planning" is difficult because every client's case is different. Some have more savings or income than others. Some are married, others are single. Some have family support, others do not. Some own their own homes, some rent. Still, a number of basic strategies and tools are typically used in Medicaid planning. Asset transfers may be used, but are investigated to be sure that they are not for less than fair market consideration if they are made within the look back period. All asset and money transfers should be made carefully, with an understanding of all the consequences. People who make transfers must be careful not to apply for Medicaid before the five-year look back period elapses without first consulting with an elder law attorney due to possible penalties that could prevent qualification for Medicaid for many years. Any asset transfer strategy must take into account the nursing home resident's income and all of his/her expenses, including the cost of the nursing home. Also, bear in mind that if you give money to your children or place their name on your accounts, it belongs to them and you should not rely on them to hold the money for your benefit. However well-intentioned they may be, your children could lose the 16

19 funds due to bankruptcy, divorce or lawsuit. Do not give away your savings unless you are ready for these risks. There are legal methods to plan for Medicaid and use transfers. One spouse may be able to transfer assets to the other; an applicant may be able to transfer assets to an adult child under certain circumstances; Trusts and annuities may protect some assets during the applicant s lifetime while making them available for Medicaid estate recovery. By planning in advance, the early use of some types of trusts, Medicaid compliant annuities, life insurance, long term care policies, the Partnership insurance programs, and other tools will provide a plan to qualify for Medicaid and maintain some assets for personal needs. The Medicaid regulations allow for very limited circumstances in which an asset transfer could be made during the five year look back period. These regulations allow for some situations in which there was a pattern of giving or if there was no reason to believe the person would be in need of Medicaid. However, these regulations only apply at the discretion of the county department and are allowed very rarely. Consult with an Elder Law attorney to see if you have one of the exceptions. Mistake #4 Believing you must leave an inheritance. You do not have to save your estate for your children or 17

20 your grandchildren. While this seems rather selfish, but when you reach a certain point in your life, you must be prepared to use your assets to preserve your health and independence. With the cost of prescriptions, insurance, long term care, and personal items all increasing faster than incomes, there is a very good chance that you will need to spend some or all of your savings. According to the Brookings Institution and Tax Policy Center, 42% of Americans over 65 need long term care, while 85% of the population over 85 live with multiple chronic conditions and disability. In 2011, a study by the Employee Benefit Research Institute found that 29% of employees who are over age 55 have saved less than $10, for retirement. That amount covers about two months of assisted living, medical needs, and living expenses. Even $100, can be depleted in one year by a chronic illness. Our parents were raised with the belief that they had a duty to leave a financial legacy for the next generation. While that is a good belief, it may not be possible for over 90% of the population when they reach their later years and need extended care. The bumper sticker that reads "I'm spending my children's inheritance" is a perfectly appropriate approach to estate and Medicaid planning. 18

21 MEDICAID FOR 2015 Income limit $2, Average Cost of Nursing Home Denver Metro Area 1 $8, Region II 2 $7, Region III 3 $6, Region IV 4 $6, Penalty Divisor $ Community Spouse Resource Allowance $119, Maximum Monthly Maintenance Needs $2, Allowance Shelter Standard $ Home Equity Allowance $552, Adams, Arapahoe, Boulder, Broomfield, Denver, and Jefferson Counties. 2 Cheyenne Clear Creek, Douglas, Elbert, Gilpin Grand, Jackson, Kit Carson, Larimer, Logan, Morgan, Park, Phillips, Sedgwich, Summit, Washington, Weld and Yuma Counties. 3 Alamosa, Baca, Bent, Chaffee, Conejos, Costilla, Crowley, Custer, El Paso, Fremont, Huerfano, Kiowa, Lake, Las Animas, Lincoln, Mineral, Otero, Prowers, Pueblo, Rio Grande, Saguache, and Teller Counties. 4 Archuleta, Delta, Delores, Eagle, Garfield, Gunnison, Hinsdale, La Plata, Mesa, Moffat, Montezuma, Montrose, Ouray, Pitkin, Rio Blanco, Routt, San Juan, and San Miguel Counties. 19

22 COMPARING MEDICARE TO MEDICAID Who Runs It Eligibility Coverage Medicaid Medicaid is a federal program administered by the states. Information is available at your state's health services office. Low-income people can qualify, regardless of age. Medicaid covers basic health care costs such as visits to the doctor and hospital stays, but can also cover things like the cost of eyeglasses. Medicare Medicare is a federal program with uniform, national rules. Medicare benefits can begin as early as age 62, or even earlier in the case of serious disability covered by Social Security. Part A -- hospital and post-hospital facility charges, as well as home health care Part B -- doctor fees and lab costs, outpatient care Part D -- prescription drug coverage 20

23 Costs Medicaid sometimes charges its users small fees for certain services. Medicaid may pay for Medicare deductibles and premiums, and it can cover the 20% of medical costs that Medicare will not pay for. There is a yearly deductible for all three Medicare plans. Part A -- copayments for lengthy hospitalizations Part B to 35% of medical bills, plus a monthly premium Part D -- for 2011, there is a coverage gap such that Medicare will not cover total drug costs after they exceed $2,840, but will resume coverage once total drug costs reach $4,550. Beneficiaries must also pay a monthly premium and 25% of drug costs once the deductible is met. 21

24 The Zapor Law Office, P.C W. 5 th Ave., #202 Lakewood, CO LAW FORLIVING IN LAKEWOOD! 22

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