Hanlon Niemann Blog | A Freehold, New Jersey Law Firm

Fredrick P. Niemann, Esq., NJ Medicaid Attorney

Here’s a story I was told by a colleague.  Mary was 85 years old and had been cared for by her granddaughter, Jane for several years.  As Mary’s health deteriorated mentally and physically, Jane devoted more of her time to caring for Mary, putting her own life on hold in some respects.  Mary’s family agreed that Jane would look after Mary.  Eventually, however, Jane could no longer care for Mary.  Mary was admitted to a hospital and then a nursing facility.  Because she had no assets, Jane needed to make application for Medicaid benefits and that’s when the problems began.

When Jane met with a Medicaid caseworker, she was asked about Mary’s finances.  Jane explained that in 2004, Mary sold her house for $125,000.  Jane moved Mary to an over 55 community where Jane lived nearby.  Jane quit her job to look after Mary and had power of attorney for Mary.  Their finances were commingled, however, and Jane, not understanding the Medicaid rules, did not keep records of how money was spent.  Recognizing that caring for Mary was a full time job, Mary’s assets and income supported both Mary and Jane.  Mary also gave Jane gifts of several thousand dollars on a few different occasions as a symbol of her love and appreciation of Jane.

The Medicaid caseworker incorrectly told Jane that Mary was not eligible for Medicaid, that all the money from the sale of the house would be treated as a gift subject to a Medicaid penalty.  She also suggested that Jane might be held responsible for “taking” Mary’s money.  Jane was panic stricken.  She didn’t know enough to assert her rights and give Medicaid the proper information.  As bad as things were, Mary and Jane had one thing going for them, timing.  Because the home sale and spend down of the proceeds all occurred before February 8, 2006, the transfer of Mary’s assets were subject to penalties that began to run when the transfers were made.  In their case, those penalties had already expired by the time the client applied for Medicaid.  Had those transfers occurred under the new law, no Medicaid would have been available to Mary for 12 months or more, leaving Jane with no way to pay for her care and the nursing home with a resident unable to pay their bill.

The next case that comes to us with these set of facts will likely fall under the new rules and would not end as favorably.  So what can you do?  Consult with an elder law attorney and understand the rules well before Medicaid is even a possibility on the horizon.  Once properly educated, you can take the steps to avoid the mess Mary and Jane faced or fix the mistakes.  If you wait until it’s time to file for Medicaid, it could very well be too late.

For further information and advice in any elder law matter, do not hesitate to contact me at 732-863-9900 Ext. 101 or 105, or fniemann@hnlawfirm.com.

Fredrick P. Niemann, Esq., NJ Medicaid Application Attorney

When money is running out and the family is faced with the need to apply for Medicaid to pay for long term care the question becomes “should we do this ourselves or should we hire an elder law attorney to help?”  Sometimes the hospital or the nursing home tells the family they will qualify without too much difficulty.  Many places strongly encourage families to hire an experienced Medicaid attorney.  So they try to do it themselves.

The pitfalls of going it alone are many and varied, especially since the latest round of Medicaid changes effective February, 2006 made the laws and regulations in this area much more complicated.  Timing is critical.  By that, I mean to say, that when you spend down assets and what assets you have at a certain point in time will have an impact on qualifying for benefits.  Let me illustrate by way of example.

John and Mary were in their 80’s and living in their home, which they owned.  They had other countable assets of approximately $50,000.  John and Mary had done no planning for their long term care needs.  John became ill in October, was admitted to the hospital and then to a nursing home for rehabilitative services.  His condition was such, that he could not go home and needed to remain in the nursing home on a long term basis, at a private pay cost of $10,000 per month.

Mary was told by various personnel at the hospital and the nursing home that based on their level of assets “John would qualify for Medicaid” in January and they arranged for her to meet with a Medicaid caseworker to make an application for benefits.  Being stressed out by the reality that John would not go home and uncomfortable with the complicated process she did not understand that for John to qualify she would have to spend down a portion of their assets to get below a certain dollar amount.  In her case that number was $27,000.  The caseworker explained this to her at the interview but, quite frankly, she was receiving so much information that she really didn’t fully understand how important that was.

She waited for medical and nursing home bills to come in.  She figured she owed the money so it was as good as spent.  In other words, in her mind she didn’t have $50,000.  They owed $28,000 so she had $22,000 left.  Not true under Medicaid rules.  Until she wrote those checks, John and Mary were “over-resourced”, Medicaid’s term for having too much money to qualify for benefits.  If you are over-resourced by even $1.00 you won’t get Medicaid for that month.  You will never get Medicaid for that month.

Had she paid those bills right away John would have qualified for benefits in January.  Instead, she didn’t write those checks until June, meaning John didn’t qualify for Medicaid until July.  Great, so Medicaid picked up the nursing home bill in July.  There was one small problem.  Who was going to pay the nursing home bill for January through June?  The answer was John and Mary, and at the private pay rate of $10,000 per month that was $60,000.  The shame is that this didn’t need to happen.

This example illustrates the pitfalls of going it alone.  The rules are quite complicated and timing is critical.  You don’t want to be left with a huge nursing home bill which you can’t pay.  The nursing home doesn’t really want to be in the position of suing their residents.  Having a knowledgeable elder law attorney representing you can save huge dollars and huge amounts of stress.

For further information and advice in any elder law matter, do not hesitate to contact me at 732-863-9900 Ext. 101 or 105, or fniemann@hnlawfirm.com.

The Supreme Court of Minnesota rules that Medicaid may not recover from the estate of a Medicaid recipient’s surviving spouse if, at the time of her death, the recipient did not possess a legal interest in the property being claimed. However, the court also finds that federal Medicaid law does not totally preclude recovery from the estate of a surviving spouse of a Medicaid recipient.

Dolores and Francis Barg had been married for 53 years when Mrs. Barg entered a nursing home in 2001. Once she entered the home and began receiving Medicaid benefits, Mrs. Barg’s guardian transferred her joint tenancy interest in the couple’s home to Mr. Barg, individually. Mrs. Barg died in January 2004 without leaving a probate estate and Mr. Barg passed away five months later. The county Medicaid agency then filed a claim against Mr. Barg’s estate for the cost of Medicaid services paid on Mrs. Barg’s behalf. Mr. Barg’s estate contested a portion of the county’s claim and an appellate court decided that, under principals of real property law, Mrs. Barg possessed a one-half share of the property at the time of her death which could be recovered from Mr. Barg’s estate.

Mr. Barg’s estate appealed, arguing that federal Medicaid law preempts any recovery from the estate of a surviving spouse, and, even if recovery was allowed in some cases, the state could not recover from Mr. Barg’s estate because Mrs. Barg had transferred her property interest to Mr. Barg during her life, not through a transfer at her death. The county argued that Minnesota law allows recovery from the estate of a surviving spouse for any assets jointly owned by the couple at any point during their marriage.

The Supreme Court of Minnesota rules that federal Medicaid law does not preempt a state from pursuing all estate recovery against the estate of a surviving spouse because there is “sufficient ambiguity” in the federal statute authorizing estate recovery. However, the court also finds that the allowable scope of estate recovery is limited to assets that the Medicaid recipient had a legal interest in at the time of her death and voids a portion of the Minnesota estate recovery statute permitting recovery of assets in which the recipient did not have a legal interest. Since “Dolores had no interest in assets at the time of her death that were part of a probate estate or an expanded estate definition permissible under federal law … there is no basis for the County’s claim against the estate,” the court writes.

While long-term care insurance can be a good way to pay for a nursing home stay or a home health care worker, it doesn’t come cheap. Annual premiums vary significantly, depending on your age, health, and the type of policy, but policies can run as high as $5,000 per year. You do not need to pay that much, however. The following are some ways to reduce your costs.

• Shorter benefit period. The most significant cost-saving step you can take is to not purchase a lifetime policy. Unless you have a family history of a chronic illness, you aren’t likely to need coverage for more than five years. In fact a new study from the American Association of Long-term Care Insurance shows that a three-year benefit policy is sufficient for most people. According to the study of in-force long-term care policies, only 8 percent of people needed coverage for more than three years. By purchasing coverage for three, four, or five years instead of a lifetime, you can save thousands of dollars in premiums. If you do have a history of a chronic disease in your family, you may want to purchase coverage for 10 years, which would still be less than purchasing a lifetime policy.

• Buy younger. Long-term care insurance premiums rise as you age, so the younger you buy, the cheaper your premiums. Be careful, however, because insurance premiums can, and often do, increase considerably from your initial purchase price. Even if you have a policy that is “guaranteed renewable,” your premiums can still increase.

• Shared care policy. If both you and your spouse are purchasing long-term care insurance, a shared care policy might be able to give you more coverage for less money. With a shared care policy, you buy a pool of benefits that you can split between you and your spouse. For example, if you buy a five-year policy, you will have a total of 10 years between you and your spouse. If your spouse uses two years of the policy, you will have eight years. A shared care policy may cost more than separate policies with the same benefit period, but it will allow you to buy a shorter policy, knowing that you have a pool of benefits to work with.

• Longer elimination period. Most policies have a waiting period before coverage begins, typically 30-90 days. The longer you make this waiting period, the cheaper your premiums. Keep in mind, however, that you will have to pay for your care out of pocket until the waiting period is over and the insurance begins its coverage.

• Reduce the daily benefit. Instead of purchasing the maximum daily benefit you might need in a nursing home, you can consider paying for a portion of the daily benefit yourself. You can then insure for the maximum daily benefit minus the amount you plan to pay. A lower daily benefit will mean lower premiums.

• Inflation protection. Inflation protection increases the value of your benefit to keep up with inflation and is almost always recommended. But you can save on premiums by which method of protection you choose: compound-interest increases or simple-interest increases. If you are purchasing a long-term care policy and are younger than age 62 or 63, you will need to purchase compound inflation protection. This can, however, more than double your premium. If you purchase a policy after age 62 or 63, some experts believe that simple inflation increases should be enough, and you will save on premium costs.

You should also remember that your premiums may be tax-deductible. Premiums for “qualified” long-term care policies will be treated as a medical expense and will be deductible to the extent that they, along with other unreimbursed medical expenses (including “Medigap” insurance premiums), exceed 7.5 percent of the insured’s adjusted gross income.

The federal Centers for Medicare & Medicaid Services (CMS) has announced that its Web site comparing nursing homes will now identify facilities that are on its list of those that have a history of poor performance.

From now on, the agency’s Nursing Home Compare site will point out nursing homes that it calls Special Focus Facilities — those that have repeated violations of state and federal health and safety rules and that rank in the worst 5 percent to 10 percent for inspection results in a given state. CMS released the names of the 131 SFF facilities earlier this year, but this is the first time they will be included on the Nursing Home Compare site. 

The troubled facilities are identified by a small “2″ in superscript next to a facility’s name.
A Wall Street Journal article on the CMS decision notes that “consumer groups and nursing home officials warn, however, that nothing can substitute for visiting a nursing home in person.” The article also highlights a free Web site MemberoftheFamily.net that features easy-to-read, color-coded assessments of nursing homes nationwide.

The Journal article observes that CMS began making some of the information about problematic nursing homes public last fall after pressure from Sens. Herb Kohl (D-WI) and Charles Grassley (R-IA). The senators are sponsoring a bill that would force CMS to reveal even more data about nursing homes and Grassley is trying to get the provisions added to a Medicare-related bill expected to pass Congress by July 1.

While you generally do not have to sell your home in order to qualify for Medicaid coverage of nursing home care, it is possible the state can file a claim against your house after you die. If you get help from Medicaid to pay for the nursing home, the state must attempt to recoup from your estate whatever benefits it paid for your care. This is called “estate recovery,” and given the rules for Medicaid eligibility, the only property of substantial value that a Medicaid recipient is likely to own at death is his or her home. If possible, you should consult with an attorney before entering a nursing home, or as soon as possible afterwards, in order to discuss ways to protect your home.

In those states that have implemented the Deficit Reduction Act of 2005, the home is not counted as an asset for Medicaid eligibility purposes if the equity is less than $500,000 ($750,000 in some states). In all states, you may keep your house with no equity limit if your spouse or another dependent relative lives there.

Transferring a Home
In most states, transferring your house to your children (or someone else) may lead to a Medicaid penalty period, which would make you ineligible for Medicaid for a period of time. There are circumstances in which it is legal to transfer a house, however, so consult an attorney before making any transfers. (For example, transfers to a disabled child or one who qualifies as a “caregiver child” are permitted.) While you can sell your house for fair market value, it may make you ineligible for Medicaid and you may have to apply the proceeds of the sale to your nursing home bills.

Lien on Home
Except in certain circumstances, Medicaid may put a lien on your house for the amount of money spent on your care. If the property is sold while you are still living, you would have to satisfy the lien by paying back the state. The exceptions to this rule are cases where a spouse, a disabled or blind child, a child under age 21, or a sibling with an equity interest in the house is living there.

Estate Recovery
If your spouse, a disabled or blind child, a child under age 21, or a sibling with an equity interest in the house, lives in the house, the state cannot file a claim against the house for reimbursement of Medicaid nursing home expenses. However, once your spouse or dependent relative dies or moves out, the state can try to collect.

But there are some circumstances under which the value of a house can be protected from Medicaid recovery. The state cannot recover if you and your spouse owned the home as tenants by the entireties or if the house is in your spouse’s name and you have relinquished your interest. If the house is in an irrevocable trust, the state cannot recover from it.

In addition, some children or relatives may be able to protect a nursing home resident’s house if they qualify for an undue hardship waiver. For example, if your daughter took care of you before you entered the nursing home and has no other permanent residence, she may be able to avoid a claim against your house after you die. Consult with an attorney to find out if the undue hardship waiver may be applicable.