Posts filed under 'Medicaid Planning'
December 30th, 2011
Recent changes to New York State Medicaid laws have expanded the definition of an “estate” for Medicaid estate recovery purposes.
Upon the death of a Medicaid recipient, Medicaid can recover expenses paid on behalf of the recipient from his or her estate, under certain circumstances. Before the new regulations were put into place, Medicaid limited its claims to the decedent’s probate estate, which generally included only those assets that passed through a will or intestacy. Now, with the expansion of the definition of estate, Medicaid is also taking into consideration assets outside of the probate estate, including jointly held real or personal property, retained life estates and interests in trusts. Therefore, assets that were previously protected from a Medicaid claim may now be at risk.
Despite the changes in the law, you can still effectively plan for your future long-term care needs and preserve some, if not all, of your assets. Now, more than ever, it’s important to review your current plan with an Elder Law attorney to be sure that you are in the best possible position to preserve your life’s savings and protect your property. Call the Elder Law attorneys at Lamson & Cutner at (212) 447-8690, to schedule a consultation.
December 21st, 2011
We’ve been asked several times whether or not a Medicaid applicant can have a primary (and in many instances secondary) health insurance plan, and, if so, if he or she must give up such plans once accepted to the Medicaid program. People often believe that their medical insurance coverage precludes them from becoming Medicaid eligible, and are worried that they may lose their current benefits by becoming a Medicaid recipient.
Having medical insurance, either through Medicare or any other private plan (such as GHI or Blue Cross Blue Shield), does not prevent an individual from becoming Medicaid eligible. Additionally, if an individual is accepted to the Medicaid program, he or she will not be forced to give up any existing health insurance plans.
Since medical insurance does not pay for the catastrophic cost of long term care, it is often necessary for an individual to access Medicaid for assistance with paying for home care or nursing home care, even if he or she has ample health insurance.
When it comes to medical coverage, Medicaid is the “payor of last resort,” so a patient’s primary and secondary insurance policies will be accessed before Medicaid contributes. In fact, Medicaid advises that a Medicaid recipient maintain all insurance policies he or she currently has, and even offers incentives such as deducting the cost of the premiums from the recipient’s monthly income calculation or paying the premiums under certain situations. Also, it is advisable that current health insurance be maintained so that the Medicaid recipient can continue to see his or her doctors and specialists, even if they don’t accept Medicaid.
The fact that you have Medicare or a supplemental health insurance plan should not keep you from accessing Medicaid benefits if you need assistance with paying for long-term care. Elder law attorneys can advise you on how to get the most benefits available to you, without giving up any insurance you already have.
September 15th, 2011
The NYS Department of Health has finally issued long-awaited regulations implementing changes in New York law regarding recovery and reimbursement from estates of Medicaid recipients. These changes have been very controversial because the law’s new definition of what constitutes the “estate” is in conflict with other, long-established, laws affecting estates, trusts, and real estate. In essence, under the new laws and regulations, Medicaid will seek to recover from non-probate assets, i.e., assets that have never been considered to be part of a decedent’s estate, or even to exist at all after death. A prime example is that Medicaid will seek to recover the value of life interests in real estate (which, under real estate law, are extinguished upon death). Lamson & Cutner is currently analyzing the new regulations, and will be posting additional advisories once we have a clear view of their implications.
July 14th, 2011
New York’s recently-enacted gay marriage law is a great emotional and symbolic victory for New Yorkers, and for gay couples everywhere. It also has significant practical benefits in many areas that touch the legal rights of married persons. For those of us concerned with the health care, and particularly long-term care, of seniors, New York’s law will have a significant impact. For example, gay couples who marry will have spousal rights under the Medicaid laws to make exempt transfers of money and property to their spouses, and to claim the benefits of the Community Spouse Resource Allowance and the Minimum Monthly Maintenance Needs Allowance. To find out more, contact your Elder Law attorney.
April 28th, 2011
State experimentation to cut expenditures on Medicaid continues: Florida is planning to funnel almost all of its Medicaid recipients into for-profit H.M.O. networks that will manage long term care of the elderly. This decision indicates a shift from caring for many of the elderly in nursing homes to expanding home care, which is currently very limited in Florida.
While pending legislation in Florida might succeed in curtailing the Medicaid budget, it seems clear that patient care will suffer. As for-profit insurance companies seek to maximize their profits, reimbursement rates to providers will be under pressure, doctors will opt out of networks, and patient care and benefits will be restricted.
At Lamson & Cutner, we recognize that the Federal and State governments are going to be trying out different tactics to reduce Medicaid costs. While it may be important for budgetary reasons to do so, we believe that patient care must remain the first priority, and that there are available solutions for government to reduce costs that do not imply reductions in care.
The current “attacks” on the Medicaid system make it all the more important for patients and their families to seek competent legal advice. If you need help with Elder Law issues, please feel free to contact our firm.
April 25th, 2011
Arizona’s governor has proposed an unconventional way to raise money for the state’s economically strapped Medicaid program. Governor Jan Brewer has proposed a fee of $50 to those individuals enrolled in the state’s Medicaid program who are obese or are smokers, and don’t follow their doctor’s orders to get healthy.
Proponents of the fee claim that if the proposal were ratified by the state’s legislature, and the fee was enforced, many service cuts that have been made to balance the budget would be offset, including the revival of coverage of organ transplants.
The Arizona surcharge would apply to childless adults who are obese and those who smoke. Patients that do not meet specified goals according to a personal wellness plan developed with a primary-care physician would be required to pay the $50 fee. At this point, the measure to determine obesity, or whether an obese person is following his or her wellness plan, has yet to be finalized.
While surcharges and higher premiums for unhealthy habits such as smoking have been implemented by private insurance companies, this would be the first time that such fees have been proposed by a state for imposition on recipients of Medicaid. It has been suggested that federal Medicaid rules would prevent the state from enacting such a law, but the law’s proponents believe that federal rules would not apply in this instance.
This type of proposal may soon be mirrored by other states attempting to develop creative ways to balance their budgets. If Arizona is successful in passing this law we may find other states following suit.
While New York State has not sought to impose an obesity fee to date, the recent proposals of the Medicaid Redesign Team reflect a growing concern with Medicaid costs. Your Elder Law attorney needs to be up-to-date regarding the most recent proposals and developments affecting New York’s Medicaid program, in order to assist you with navigating through the program’s ever-changing rules. If you need advice, please feel free to contact Lamson & Cutner.
March 5th, 2011
New York’s newly created Medicaid Redesign Team (“MRT”) are proposing dramatic changes in our Medicaid program. While it is early in the process, and the proposals may not be implemented in their present form or at all, budgeting pressures at all levels of government make it likely that some changes in the Medicaid program will occur. Here are a couple of the particularly troubling features of the MRT’s proposals:
Elimination of Spousal/Parental Refusal.Currently, a spouse or other legally responsible relative may refuse to provide, or contribute to, the support of an applicant for Community Medicaid or Medicaid Home Care. When this occurs, Medicaid is obligated to provide care or services to the applicant if he is individually eligible, even if the spouse or other relative could afford to pay. The MRT is proposing that the resources and income of the spouse or other legally responsible relative should be counted in determining whether the applicant is eligible for Medicaid. This means that spouses, and parents of disabled children, will be required to spend down virtually all of the household’s assets, and contribute a share of their income, before their ill spouse or disabled child will be eligible to receive care.
Implementation of the 5-year “Look Back” for Community Medicaid and Home Care. Currently, the 5-year look back and transfer penalties apply only to applicants for Medicaid Nursing Home Care. This means that applicants for Community Medicaid or Home Care are currently free to transfer their assets to family members, friends, or trusts, and thereby become eligible for Medicaid benefits. The MRT’s proposal would extend the 5-year look back to Community Medicaid and Home Care, which means that many potential applicants will find that they are ineligible for Medicaid, or subject to a lengthy penalty period before benefits can be obtained.
Impact of these proposals. If the above proposals become law, many Medicaid applicants and their families will be severely affected. Some will find their financial situation and lifestyle significantly diminished, and others may find it difficult to pay for even basic living expenses. People, including disabled children, who could otherwise have been cared for at home may find that institutional care is the only viable option once the family’s resources have been exhausted.
What to do? Now, more than ever, people who need, or may need, long-term care should make it a top priority to consult an Elder Law attorney. Planning steps may need to be taken earlier than previously seemed advisable. It will still be possible to improve your situation, even if these draconian new measures find their way into law.
November 30th, 2010
Many seniors currently need assistance paying their bills and managing their finances, or may need help sometime in the future. It’s important to have a trustworthy person authorized to manage your finances should you be unable to do so yourself.
For many seniors, adding a child or other loved one as co-owner on bank and brokerage accounts can be an easy and convenient way of managing those assets and making sure bills are paid on time. However, many seniors do not take into account the possible risks and potential consequences of joint ownership, and the other available alternatives that may be more in line with their objectives.
First, be aware that a joint owner will have complete access to your bank account and has the right to make an unlimited amount of withdrawals, even if it is your money in the account. A joint owner can write checks and withdraw money without your permission. This is why it is imperative to name an individual who you trust will act in your best interest.
Second, once your co-owner’s name is on the account, your money will be vulnerable to his or her creditors. For instance, if your co-owner goes through a divorce, has a business failure, or gets sued, your money will be exposed to those claims.
Third, when you die, the assets in a jointly-owned account will automatically become the property of the surviving owner. A joint owner generally has a ‘right of survivorship,’ so the assets will pass directly to him or her at your death. This can be a desirable and convenient way of passing assets at death, as long as it is in line with your wishes. However, the results can be disastrous if your intention is for the money to pass to someone else, or to be divided among several beneficiaries according to the terms of your will.
Additionally, as Elder Law attorneys, we are always concerned with possible Medicaid implications. Many people erroneously believe that Medicaid will view a joint account as being owned half by the Medicaid applicant and half by the other owner. However, Medicaid presumes that the entire account belongs to the Medicaid applicant, and the burden is on the applicant to prove otherwise. Therefore, joint ownership does not protect any portion of an account from Medicaid’s rules unless it can be proven that money in the joint account belongs to someone other than the Medicaid applicant.
A joint account may be appropriate in certain situations, however, there are several alternatives to joint accounts that can protect you and your assets in different ways.
One simple alternative is to sign a durable power of attorney, and file it with the financial institutions where your accounts are held. Your agent under your power of attorney would be able to manage your finances on your behalf, including making withdrawals and writing checks without your permission, but the assets would be owned by you alone. Your agent would have a legal duty to manage your finances on your behalf and in your best interest.
Also, if you are the sole owner on the account and have a power of attorney, you should designate beneficiaries to avoid lengthy and costly probate proceedings. By using “in trust for” (also known as “ITF”), “pay on death” (also known as “POD”) or “for the benefit of” (also known as “FBO”) designations on your accounts, your money will pass directly to the beneficiaries that you have listed after you pass away, but they will have no ownership interest during your lifetime.
Although they are beneficial for assistance with managing your assets while you are alive and distributing your assets after death, neither a power of attorney nor an ITF designation will protect your money should you need to apply for Medicaid benefits. In almost all situations, the best and most protective vehicle for safeguarding your assets is going to be a trust. A trust is a legal entity that is created in order to assume ownership of your assets and property, and hold them for your benefit during your life and for your beneficiaries after your death. A Trustee is named to manage the funds in the trust according to the terms of the document.
Once your assets are transferred to the trust neither you nor the Trustee is the owner of the funds, thereby allowing you to become financially eligible for Medicaid benefits. Additionally, the trust protects your money from your – and your Trustee’s – creditors (including Medicaid). At your death, the trust assets pass to the beneficiaries you designate within the trust agreement itself. There are several types of trusts available to protect assets and property from potential creditors, avoid probate, and keep your assets safe and available for you even if you need to apply for Medicaid services.
As you can see, there are many ways to title your assets in order to place yourself in the best possible position according to your particular needs and comfort level. It’s important that you speak to an Elder Law attorney about planning for a time when you may be incapable of managing your own affairs and placing you in the most advantageous position possible should you need to apply for Medicaid. Elder Law attorneys will work closely with you to devise a plan that works for you and in which your priorities are tantamount. If you would like advice about your specific situation, call us today at (212) 447-8690.
June 30th, 2010
Heavy financial pressures on the federal and state governments are being felt in the Medicare and Medicaid programs. Both of these programs are important safety nets for the millions of seniors and disabled persons in our country. However, as the costs of medical and long-term care continue to escalate, the financial impact of these programs on federal and state budgets is dramatic.
The federal government is increasing pressure on private insurers that sell Medicare Advantage plans by freezing payment rates to these insurers in 2011 and reducing them starting in 2012. Meanwhile, medical costs are increasing by at least 6% per year, and these private insurers are being warned not to increase premiums or co-pays to seniors. Inevitably, something has to give, and it’s likely to be a reduction in the scope and quality of services.
On the Medicaid front, many states are facing larger-than-expected budget deficits because assumed federal assistance for Medicaid is apparently not going to be awarded by Congress. New York may be forced to do without $1.1 billion in federal funds that had been penciled into the state budget.
Due to federal mandates regarding health care, the funding shortfalls will result in a reduction of other services, including education, the arts, and even police and fire. Layoffs of government workers are expected. Medicaid is likely to feel the pinch, as well.
As Elder Law attorneys, we are starting to see a change in attitude at some of the Medicaid offices in local counties, even though the governing laws and rules have not changed. Rather than being compassionate and helpful, many Medicaid workers, compelled by budgetary pressures, are looking for ways to delay or deny applications for medical assistance or to reduce the scope of services. Medicaid is also becoming more aggressive about enforcing spousal obligations of support, pursuing liens against real property, and seeking recovery from the estates of Medicaid recipients.
In these times, we believe that it is all the more important for seniors, the disabled, and their families to be aware of their rights to government benefits for medical and long-term care, which can be ruinous if paid from your own funds. For many, a consultation with an Elder Law attorney will be the best couple of hours you’ve spent in a long time.
September 28th, 2009
In New York, Medicaid requires recertification once per year to continue your benefits. In order to maintain access to medical and health services without any lapse, it’s critical to prepare and submit the proper recertification documentation. Home or nursing facility care, doctor visits, prescriptions and other vital coverage all depend on it.
A recent New York Times article highlighted the importance of keeping your Medicaid status current. It referenced a study of patients who experienced lapses in their coverage and the effects on them. The five-year inquiry found that people with intermittent coverage had three times the incidence of hospitalization as those who received continuous benefits. Many instances of illness and disability that could have been handled at a physician’s office degenerated into conditions requiring hospital care. The reason was individuals didn’t seek care sooner due to the absence of benefits.
Chronic health conditions posed the greatest dangers for these patients, with many having been being hospitalized within three months of losing Medicaid benefits.
Attempting to process your own recertification documents can be problematic. If you handle your own recertification, you may be exposed to a greater risk of denial of benefits than if you have the professional assistance of a competent Elder Law attorney. Your Medicaid lawyer deals with recertification issues on a routine basis and is in the best position to give you the proper advice. Experienced lawyers also help make the entire process as smooth and hassle-free as possible.
The study concluded that with continuous Medicaid coverage and uninterrupted access to primary care services, many hospitalizations could be avoided. It’s a mistake not to get the medical care you need until there are serious health consequences. By taking these simple steps to keep your eligibility for Medicaid intact, you won’t lose access to your benefits and can protect your health, well-being and quality-of-life.
If you have been denied Medicaid benefits you once had, you can get information on reestablishing your coverage at Denial Of Medicaid.
November 13th, 2007
Seniors who are considering a change of residence should consider the cost of medical insurance and the availability of Medicaid benefits.
For many seniors and retirees living in New York (and other northern states), the warm climates of, for example, Florida, Arizona or other southern states, may be appealing. Real estate developers have created numerous retirement communities to fulfill the needs and desires of these “snow birds.”
When considering the feasibility of changing their residence to another state, seniors and retirees are well advised to investigate the cost of medical insurance and the availability of Medicaid home care services.
Insurance premiums can vary widely from state to state. For some people with pre-existing conditions, coverage may not be available at all, or only in a state’s “high risk pool” at very high rates.
In a few states – including New York – coverage cannot be denied and insurance companies must establish premiums without regard to age, gender, or health of the applicant. Also, New York has very generous Medicaid home care benefits that are unmatched by any other state.
Even though insurance premiums or the availability of Medicaid benefits may not be the controlling factors involved in their decision regarding whether to move to another state, seniors and retirees on a budget will want to be informed in advance about these considerations.
October 22nd, 2007
Medicaid Available for Breast and Cervical Cancer Patients even if they don’t meet Eligibility Requirements.
Women who have breast or cervical cancer—in addition to enduring the pain and suffering of a terrible disease—must also confront the logistical and financial nightmare of obtaining proper medical treatment. For thousands of women who have no medical insurance, the problems must seem overwhelming.
In 2000, however, Congress enacted The Breast and Cervical Cancer Prevention and Treatment Act, which makes Medicaid benefits available to such women, even if they would not otherwise be eligible for Medicaid.
This Act provides another example of where the laudable aims of a public policy are frustrated by the fact that few people are aware of the availability of these benefits and even fewer know how to obtain them. Some states—not including New York—will deny benefits unless the woman is diagnosed at a clinic funded by a federal cancer detection program.
If you, or a loved one, have breast or cervical cancer, you may be well advised to consult an attorney who is familiar with public benefits law and Medicaid.
Previous Posts
