Jan Neal Law Firm LLC

Alabama Elder and Special Needs Law


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New Federal Direction on Home and Community Based Waiver Eligibility

When a person applies for Medicaid to pay for long-term care, either in a nursing home or through the Home and Community Based Waiver (HCBW), Medicaid examines the applicant’s financial transactions for five years preceding the application to determine if any funds were given away or property sold for less than the value assigned by Medicaid.  If so, a penalty is calculated by dividing the value of the amount transferred by $5900 (as of 2018) to determine the number of months of ineligibility.

In nursing home Medicaid cases it was always clear that the penalty started to run when the person resided in a nursing facility and would meet all requirements for Medicaid eligibility but for the existence of the penalty for transferring assets.  In that situation a person is approved for Medicaid subject to the applicable penalty.  He or she is billed privately during the penalty period, often at the peril of relatives who need to come up with funds to pay the bill.  When the number of months of penalty assigned runs out, Medicaid will then pay for the resident’s care.

It has not been so clear about how to get the penalty running in HCBW cases.  If the penalty cannot run until the person receives HCBW services, but the person cannot receive HCBW because of the transfer of assets, then you can never get past the penalty period.  When the application is not taken upon identifying asset transfers, the penalty becomes permanent ineligibility for HCBW services.

On April 17, 2018, the Center for Medicare and Medicaid Services provided revised guidance on how to establish the start date for transfer penalties for HCBW applicants. In that directive CMS indicates that the penalty would begin to run at the point at which a state has: determined that the applicant meets the financial and non-financial requirements for Medicaid eligibility and the level-of-care criteria for the waiver; developed for the individual a person-centered service plan; and identified an available waiver slot for the individual’s placement. The penalty period for that applicant begins no later than the date on which a state has confirmed that all of these requirements are met, and transfers that would be subject to a penalty would be those that were made on or after the 60 months preceding this same date.

It would appear that persons who have transferred assets need to request that the application for HCBW still be taken, a care plan developed and proof provided that a waiver slot is available to establish the date all of these requirements have been met.  Hopefully Medicaid will develop procedures to document eligibility for HCBW subject to the penalty so that services can begin when the penalty has run.

The CMS revised guidance can be read here.


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Planning for the Rising Cost of Long-Term Care

Physiotherapist Holding Senior Patient's Hand On WheelchairPlanning for long-term care is an important issue to tackle, and the latest forecast shows that the associated costs of care are reaching well beyond the average person’s means.  This makes planning to save an estate an important proposition, and the earlier the planning, the greater the options.

The median cost of a private nursing home room in the United States has increased to $97,455 a year, up 5.5 percent from 2016, according to Genworth’s 2017 Cost of Care Survey.  Genworth, an insurer, surveys and publishes long-term care prices across the country annually and provides a benchmark for what caregivers will need to finance long-term care.  The company reports that the median cost of a semi-private room in a nursing home is $85,775, up 4.44 percent from 2016.

The price rise was slightly less for assisted living facilities, where the median rate rose 3.36 percent, to $3,750 a month. The national median rate for the services of a home health aide was $22 an hour, up from $20 in 2016, and the cost of adult day care, which provides support services in a protective setting during part of the day, rose from $68 to $70 a day.

For Alabama, the Genworth survey reports that the average semi-private nursing home room in 2017 was $72,996 per year/$6,083 per month (up from $71,172 per year/$5931 per month from 2016), and the average private nursing home room was $77,568 per year /$6,464 per month (up from $75,192 per year/$6,266 per month in 2016).  The average assisted living facility was $36,684 per year/$3,057 per month (up from $34,800 per year/$2,900 per month in 2016).

Alaska continues to be the costliest state for nursing home care, with the median annual cost of a private nursing home room totaling $292,000. Oklahoma again was found to be the most affordable state, with a median annual cost of a private room of $63,510.

The 2017 survey was based on responses from more than 15,000 nursing homes, assisted living facilities, adult day health facilities and home care providers. The survey was conducted by phone during May and June of 2017.


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Deeding Property with a Reserved Life Estate

agreementThe term “life estate” often comes up in discussions of estate and Medicaid planning, but what exactly does it mean? A life estate is a form of joint ownership that allows one person to remain in a house until his or her death, at which time it passes to the other owner, referred to as the person with the remainder interest. Life estates can be used to avoid probate while giving a house to children without losing the ability to live in the home, remaining responsible for property tax – with the benefit of homestead and age related tax exemptions, remaining responsible for homeowner insurance, yet creating ownership in the children at the death of the parent.   This type of deed can play an important role in Medicaid planning since Medicaid does not assign any value to a life estate when the parent applies for Medicaid to pay for nursing home care.  If the transfer occurred prior to five years before application, there will be no penalty for the transfer.

In a life estate, two or more people each have an ownership interest in a property, but for different periods of time. The person holding the life estate — the life tenant — possesses the property during his or her life. The other owner — the remainderman — has a current ownership interest but cannot take possession until the death of the life estate holder. The life tenant has full control of the property during his or her lifetime and has the legal responsibility to maintain the property as well as the right to use it, rent it out, and make improvements to it.

Another example of use of life estates is when a spouse who owns property in only his or her name wants to leave that property to his or her children from a former marriage but wants the later in life spouse to be protected and have a place to live.  That person might write a will leaving a life estate to the spouse with the remainder to his or her children on the death of the spouse.  This comes up not infrequently when individuals want to protect property passed to them by family and who want to keep that property in their blood line while protecting the spouse as well.

When the life tenant dies, the house will not go through probate, since at the life tenant’s death the ownership will pass automatically to the holders of the remainder interest. Because the property is not included in the life tenant’s probate estate, it can avoid Medicaid estate recovery in states that have not expanded the definition of estate recovery to include non-probate assets, which includes Alabama at the time this is being written.

Although the property will not be included in the probate estate, it will be included in the taxable estate. Depending on the size of the estate and the state’s estate tax threshold, the property may be subject to estate taxation.  However, the joint federal lifetime estate tax exemption and gift tax exclusion is $5,490,000, so few people are actually subject to estate tax.

The life tenant cannot sell or mortgage the property without the agreement of the remaindermen. If the property is sold, the proceeds are divided up between the life tenant and the remaindermen. The shares are determined based on the life tenant’s age at the time — the older the life tenant, the smaller his or her share and the larger the share of the remaindermen.

Be aware that transferring your property and retaining a life estate can trigger a Medicaid ineligibility period if Medicaid application is made within five years of the transfer. Further, purchasing a life estate should not result in a transfer penalty if you buy a life estate in someone else’s home, pay an appropriate amount for the property and live in the house for more than a year.

For example, an elderly man who can no longer live in his home might sell the home and use the proceeds to buy a home for himself and his son and daughter-in-law, with the father holding a life estate and the younger couple as the remaindermen. Alternatively, the father could purchase a life estate interest in the children’s existing home. Assuming the father lives in the home for more than a year and he paid a fair amount for the life estate, the purchase of the life estate should not be a disqualifying transfer for Medicaid.  Just be aware that there may be some local variations on how this is applied, so get good advice before finalizing arrangements involving a life estate if long term care could be a future concern.


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Beware Caregiver Expense Reimbursement

Caregiver Consoling Senior Woman

I am frequently asked if a parent can reimburse a child or other individual for expenses paid for the benefit of the parent during the spend down phase preceding application for Medicaid without running into problems with Medicaid.  In short, the answer is no unless there is evidence of a debt incurred in the form of a written agreement, promissory note, etc., for which the payment is made.  This is a harsh and difficult position for many caregivers who do not think twice of paying moving expenses, deposits, medical expenses, etc., for a parent only to find that later they cannot be reimbursed because they did not make a formal agreement.

A New York appellate court case recently confirmed this application of the Medicaid regulations by allowing a penalty to be imposed on the transfer of assets to a caregiver daughter without presenting a written agreement to evidence the debt.  Matter of Krajewski v. Zucker (N.Y. Sup. Ct., App. Div., 3rd Dept., No. 522888, Dec. 8, 2016).

In that case Jessie Krajewski lived with her daughter for two years before entering a nursing home. Ms. Krajewski’s husband withdrew money from their joint bank account to reimburse the daughter for her caregiving expenses. After Ms. Krajewski entered the nursing home, she applied for Medicaid. The state imposed a penalty period based, in part, on the transfers made to her daughter.

Ms. Krajewski appealed, arguing that because the transfers were made to reimburse her daughter for her care, the payments were not made in order to qualify for Medicaid. After a hearing, the state upheld the penalty period, and Ms. Krajewski appealed her case in court.

The N.Y. Supreme Court, Appellate Division, affirmed the agency decision, holding that Ms. Krajewski did not rebut the presumption that the transfers were made in order to qualify for Medicaid. The court found that there was no evidence of a written agreement between Ms. Krajewski and her daughter and the only evidence consisted of handwritten summaries of Ms. Krajewski’s living expenses, which was not enough to rebut the presumption.

The lesson to take from this case is that when a caregiver pays expenses for a person who will be applying for Medicaid, it is essential to have written proof of the debt before reimbursing the caregiver for those expenses.  While this is a general rule for transfer of money to a caregiver, be aware of the fact that in Alabama more requirements need to be met to reimburse a family caregiver for actual care provided.  If you want to establish such an arrangement it is important to seek legal advice first.


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Elder Law Training at OLLI

olli-materials-first-page

On October 10, 2016, Jan taught the first of a two part presentation on Elder Law at  Osher Lifelong Learning Institute (OLLI) at Auburn University entitled Elder Law:  Enhancing the Lives of Seniors Through Education, Planning For What Comes Next.  The second session will be taught on Monday, October 17, 2016, at 2:30 p.m. at The Clarion in Auburn, Alabama.  

Topics covered in this training include:  Older Americans Act Legal Assistance; Important Documents Needed for Proper Planning; Authority Issues; Long-term Care Levels of Care and Payment Options; Medicaid for Long-term Care; Special Needs Planning; Probate; Administration of Estates; Planning for Last Remains and Funerals.

A 39 page Keynote presentation covering these topics is provided to course participants.

Anyone interested in this and the many other learning opportunities available through OLLI can learn more by visiting the OLLI website.


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Elder Law at OLLI

Jan is teaching a two part course on Elder Law at Osher Lifelong Learning Institute at Auburn University (OLLI at Auburn).  See page 11 of the OLLI Spring 2016 catalog for the course description.  The first session is Wednesday, March 30, 2016, from 10:15 a.m. – 11:45 a.m., and the second will be on Wednesday, April 6, 2016, from 10:15 a.m. – 11:45 a.m.  Topics to be covered include Older Americans Act Legal Assistance, Authority Issues and Advance Directive Options, Long-Term Care Planning, Long-Term Care Payment Options Including Medicaid, Special Needs Planning, Probate, Administration of Estates and Funeral Planning.  If you aren’t a member of OLLI, check out all the benefits and learning opportunities here.

Materials for the training can be downloaded at elder-law-training-for-olli-at-auburn-033016-60244085 and will be posted at this site soon.


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Incentives to Purchase Long-term Care Insurance

shutterstock_305517047Long-term care insurance was originally designed to protect purchasers from the catastrophic expense associated with long-term care in a nursing home. However, over time the public has clearly voiced a preference for home care over care in an institution. In response to that preference, long-term care insurance companies now offer a variety of in-home services to help individuals pay for services to assist a person with activities of daily living. In fact most policies sold today are comprehensive policies which cover services in different long-term care settings including at home.

The majority of policies sold today are comprehensive policies. They typically cover care and services in a variety of long-term care settings to include at home skilled nursing care, occupational, speech, physical and rehabilitation therapy, and personal care. Some policies also cover homemaker services, such as meal preparation or housekeeping as well; adult day health care centers; hospice and respite; assisted living; and other residential care facilities and nursing homes.

Consumers should be aware of limitations on coverage, such as prior hospitalization requirements, and pre-existing condition exclusions. It is important to thoroughly understand what is being purchased, so a good deal of homework is involved in examining long-term care policies. Be sure that the services purchases are not services that are already covered by Medicare.

There are incentives in the form of resource protection offered by Medicaid for a person to purchase long-term care insurance.

For policies issued prior to March 1, 2009, Medicaid will not consider resources of a person equal to the amount of long-term care insurance benefit payments in determining Medicaid eligibility when the long-term care insurance policy has paid at least the first three years of nursing home care and/or home health care services.

For policies issued on or after March 1, 2009, Medicaid will not consider resources equal to the amount of benefits paid (dollar-for-dollar) by an Alabama Long-Term Care Insurance Partnership Policy (Partnership Policy) for long-term care services received in determining Medicaid eligibility and in estate recovery. The amount to be excluded will be above and beyond the standard resource exclusion provided under the Medicaid State Plan. To qualify for this exclusion, the individual must be covered by a Partnership Policy that has been certified by the Alabama Department of Insurance as a policy that covers a person who was a resident of Alabama when coverage first became effective under the policy. Medicaid will provide reciprocity with respect to long-term care insurance policies covered under other states.