If your application for Medicaid has been denied or not acted upon promptly, you have the right to a fair hearing. Here’s what you need to know:

Q: What is a fair hearing?

A: A fair hearing is a proceeding before an administrative law judge (ALJ). If you feel that the decision made by the Department of Social Services (or Managed Long Term Care Agency) on your Medicaid application was incorrect, you have the right to request a fair hearing. The three most common reasons to request a fair hearing are:

  1. A decision that you are not eligible for Medicaid (a denial);
  2. A decision that denies, suspends, reduces, or stops existing Medicaid coverage for a service; or
  3. A failure to act upon your request for Medicaid eligibility or for service coverage.

You can also request a fair hearing if you are receiving care at home and need to request more hours.

Q: How do I request a fair hearing?

A: To request a fair hearing you need to act promptly. A fair hearing MUST be requested within 60 days of the date of the Medicaid Notice for which you are appealing. You will receive a Medicaid Notice in the mail indicating the date, place, time and reason for the hearing. If you miss the deadline, you will be barred from requesting a hearing and the Medicaid Notice will stand.

Q: What documentation are you expected to provide at the fair hearing?

A: If the hearing involves medical issues, the ALJ may deem it necessary to have a new medical assessment conducted. This assessment will be obtained at the State’s expense and made part of the hearing record. You will also have the opportunity to examine and be given access to the following (upon request) before the hearing:

  • The content of your case file; and
  • All documents that the Agency (Medicaid) will use at the hearing;

You may also:

  1. Bring witnesses;
  2. Bring documentary evidence to submit a the hearing in support of your case; and
  3. Question or refute any testimony or evidence provided by the Agency.

Q: How long does a fair hearing last?

A: A fair hearing is like a trial, but not as formal. You have to present all of the evidence you have to prove that the caseworker’s decision was wrong. You may also need to make legal arguments in support of your position on eligibility for benefits. Depending on the issues, it is not uncommon for a hearing to last an hour or more. The decision is not made at the end of the hearing. It is usually mailed within 2-4 weeks of the hearing.

Q: Who makes the final decision for your Medicaid status at a fair hearing?

A: The ALJ in a fair hearing gathers all of the evidence, takes any testimony, can ask questions, and will then compile a record of the hearing and recommendation. The case record is then sent to Albany to the Office of Temporary and Disability Assistance from which the written decision is rendered. If the fair hearing decision finds fault with the Medicaid determination, then the Agency will be required to follow the hearing decision. This may include overturning the Medicaid decision as incorrect, or may require the Agency to continue to process a Medicaid application with information or documentation that was submitted at or prior to the hearing.

Q: Can I resolve a negative determination without having to attend or request a fair hearing?

A: You may be able to request that the Medicaid agency conduct a “reconsideration” of the denial or other adverse determination. Although there is no law for this process, if an Agency is willing to reconsider, the request usually must be made within 30 days of the determination. This process usually involves submitting documentation that may have been missing but was obtained subsequent to the Medicaid determination. If you are not satisfied with the reconsideration results, you still have the right to a fair hearing (but it still MUST be requested within 60 days of the original Medicaid determination).

It’s important to understand the Medicaid fair hearing process should your application be denied or delayed. There are steps to take to rectify this situation and ensure you get the services you need. If you have any questions, please contact us. We would be more than happy to discuss your situation and counsel you through this process.

It can be extremely upsetting to be told by a nursing home that your loved one must leave. Unfortunately, sometimes a nursing home will have an ulterior or nefarious reason to want to discharge a resident from the facility. Perhaps the resident is difficult. Or maybe the family members are being difficult. It may even be that the resident has become a recipient of Medicaid benefits.

Well, none of those reasons are legally acceptable for wanting to discharge a resident from a nursing home. Under federal law, there are only a handful of reasons where it is proper for a nursing home to discharge a resident:

  • The resident’s health has improved so that he or she no longer requires the care provided by a nursing home
  • Non-payment for services provided to the resident (after receiving proper notice of same)
  • The resident is a threat to the health and safety of other residents
  • The nursing home can no longer meet the needs of the resident
  • The facility goes out of business

Sometimes the nursing home will try to send the resident off to the hospital with the intention of not taking him or her back. State law may require the nursing home to hold the resident’s bed for a number of days (typically about a week). However, before a nursing home can transfer a resident to the hospital, they must inform the resident about its bed-hold policy.

The nursing home must also give proper notice as to the discharge (generally 30 days) as well as have a discharge plan, ensuring the resident has a safe place to go.

If the resident and or the resident’s family believe that the nursing home is trying to discharge the resident improperly, they do not have to accept the discharge without questioning as to why.

You can fight back and challenge an unlawful discharge. You can appeal the discharge or file a complaint with the state long term care ombudsman (for more information, see https://ltcombudsman.ny.gov/). Any appeal should be made as soon as possible after receiving a discharge notice.

YES, YES, YES! If you are over the age of 18 (and chances are if you’re reading this you are), you should have a power of attorney.  Unless you would rather leave it up to a judge.

A power of attorney is a legal document where you are giving your agent(s) the power to sign your name. A comprehensive power of attorney will allow your agent to do a number of important, and oftentimes critical, things for you, including but not limited to:

  • Access your finances
  • Pay your bills
  • Sell or mortgage your property
  • Deal with your retirement account
  • Set up trusts
  • Protect your assets if you require long term care

Powers of attorney typically fall into two categories – general and durable. A durable power of attorney remains in effect if you become incapacitated.  The power of attorney must state that it is durable, otherwise, it is general and is of no use if you become incapacitated.

The person you appoint in your power of attorney (the “agent”) should be someone you trust and is often a spouse or one or more of your children.  You can name more than one agent, but then have to decide if they have to act together or can act independently.  There are pros and cons to both and should be discussed with an experienced elder law or estate planning attorney who can assist with which works best for your particular situation.

You can give your agent as much power as you choose and can also limit an agent’s authority to act on your behalf.  Typically, though, a broadly drafted power of attorney is preferred to allow your agent to do whatever is needed, especially protecting assets.

Without a power of attorney (or if the power of attorney is not sufficient for what is needed), then a guardianship must be commenced in court. A judge will then appoint a guardian, if appropriate, to handle the person’s financial affairs.  This guardian may or may not be someone you know, or trust, or would have chosen yourself. This process is also time-consuming and expensive.

With a properly prepared and executed power of attorney, you likely will avoid your family and loved ones the time and expense of a guardianship and will have chosen those you trust to handle your financial matters and protect your assets.

You should also review your power of attorney periodically with your attorney to make sure it is current and up to date.

Generally, the answer to this question is “No”.

However, Medicaid does have a program, aptly named the “Assisted Living Program” (or “ALP”) that does provide Medicaid coverage for an assisted living.  There are a number of facilities in New York, and about a half-dozen or so on Long Island, in the ALP program.

Most assisted living facilities (“ALF”) accept only private pay or insurance (such as long term care insurance).  The cost of an ALF can be $7,000 or more per month.  For those are cannot afford the private cost of a typical ALF, they may be able to turn to the ALP program.

The Medicaid eligibility for the ALP program follows along the rules for community Medicaid.  Most importantly, there is no “look-back” period for this type of Medicaid and therefore no penalty for a transfer of assets (or gifts) that may have been made in the past, or planning as part of becoming eligible for community Medicaid.

When applying for Medicaid for ALP, the asset rules are the same (ie, a single person cannot have more than $15,450 in assets [for 2019], with a few exceptions), however, the monthly income limitations are different than the typical community Medicaid levels. Whereas with traditional community Medicaid the applicant is entitled to keep about $879/month of their income, in the ALP program the amount varies depending on the level of care but is less.  However, the recipient will still be permitted to utilize the services of a pooled income trust for the excess monthly income.  This will allow the recipient to use a portion of the excess income instead of having to spend it on care.

The ALP program can be an excellent way for someone with limited means to be able to live in an assisted living setting instead of having to go to a nursing home, perhaps prematurely, because they cannot afford a typical ALF.

With Father’s Day quickly approaching, I am reminded (not that I need to be) that although I will be celebrating as the proud father of four great kids, my own father is no longer with us.  It’s hard to believe that this will be my 6th Father’s Day without my dad.

June not only contains this cool day for dads (golf, ties, and such), but it is also Men’s Health Month.  In addition, the week leading up to Father’s Day is Men’s Health Week, the purpose of which is to heighten awareness of preventable health issues and to encourage early detection and treatment of illnesses and men (and boys).

My dad died after a short, but courageous and spirited battle against a particularly aggressive form of leukemia. My dad was not particularly fond of regular doctor visits. And we do not know for sure if his disease was caught any earlier that there would have been a different, better outcome.

What I do know, though, is that my dad did implement planning with advance directives well before becoming ill.  Many years ago I was able to convince my parents of the importance of advance directives: durable powers of attorney, health care proxies and living wills. I was successfully able to express to them that without these important documents they could be leaving it to chance or even a judge, to make decisions for them regarding health issues and finances if they did not have these documents. And, with a living will, they could express their wishes as to life-sustaining treatment if they were terminally and irreversibly ill.

I am thankful that my dad had these important documents that we were able to provide to his doctors and the hospital and that in the end, they kept my dad comfortable without implementing extraordinary measures serving only to prolong his suffering.  I am also thankful that knowing the outcome, the disease took him quickly.  And I will always miss him and his wisdom and guidance.

So guys, get yourselves checked out.  See you doctor and get all of the age-appropriate tests done. And while you’re at it, get a legal check-up too.

Many clients will ask the question, “When should I update my estate plan?” The answer is usually, whenever something big happens in your life.

All too often, clients will execute a Durable Power of Attorney, a Health Care Proxy, a Living Will, and a Last Will and Testament and believe they no longer need to think about the plan since they feel they have all the documents they need. They go on their way and live their lives and, throughout the years, different events may happen that can significantly impact their estate plan.

Here are some of the more common events that should make you think it is time to review your planning:

  • “Life” – The birth of a new loved one. If a new child or grandchild is born, you should have your estate plan reviewed by your attorney to make sure that the newest addition to your family is properly considered.
  • “Death” – Unfortunately, there may be a death of a loved one after you have created your estate plan. This death may impact your estate plan in a number of ways, i.e. testamentary scheme, your beneficiary designations, or tax planning. It is important to discuss the passing of a loved one with your attorney, especially if the person who died was a key player in your estate plan, such as a spouse.
  • “Illness” – An illness, especially one that may require long term care should create an immediate sense of urgency in having your plan reviewed. Timing is often critical in situations like this and important steps may need to be taken quickly.
  • “Marriage” (or “Remarriage”) – If you are planning to get married then you should review your estate plan with your attorney before you tie the knot to discuss the impact the marriage may have on your estate plan. This is especially true if it will be a second marriage and you both have children. If one of your loved ones is getting married or has gotten married and you are concerned about the new in-law then you should discuss your estate plan with your attorney to make sure your assets are protected for those who you intend to leave them to.
  • “Divorce” – Getting divorced will significantly impact your estate plan. You should contact your attorney prior to the divorce to make sure you are protected during the process of your divorce and once it is finalized. The divorce of a family member such as your child may also require a review of your estate plan. Although not common, some clients will include in-laws as part of their planning and it is likely that a divorce would change that.
  • “Taxes” – If your assets have significantly appreciated or depreciated in value, then the tax strategy involved in your estate plan may need to be re-evaluated accordingly.
  • “Time” – If it has been several years since you implemented your estate plan you should contact your attorney for a “check-up”. For example, you may not know that a law has changed that impacts your estate plan.
  • “A Move” – if you move to a new state, you should have your estate plan reviewed as state laws differ when it comes to estate planning documents. You need to make sure your documents are sufficient or if changes need to be made to meet state law requirements.

Creating an estate plan is important to preserve your dignity and make sure that your assets are protected for you and your loved ones in the event “life happens”. It is not only necessary to establish your estate plan, but also to follow up with your attorney periodically or after a major life event to make sure the plan is still appropriate.

As a planner, I sometimes hear things like:

  • “I thought I could give my kids $10,000”
  • “I’ll just sell my house to my children for $1”
  • “Can I pay my grandson’s college tuition and not have to worry about Medicaid?
  • “I will not give my daughter money to buy a car, I’ll just buy it for her”

So…when is a gift a gift? Is there ever a time when a gift is not a gift?

When it comes to Medicaid, the general rule is a gift is a gift, meaning that if you make a gift of your assets within the lookback period for nursing home Medicaid (the 60 months [5 years] immediately prior to the Medicaid application), the general rule is that a penalty will be assessed by Medicaid.  The penalty is a period of time-based upon the amount of the transferred assets (gifts) during which you will not be eligible for Medicaid benefits and will have to privately pay for the nursing home care (unless covered by insurance).

However, not all gifts create a penalty (or, the gift is not a gift).  There are a handful of exceptions to the general rule that a gift creates a penalty.  These are called “exempt transfers”.

One of those exceptions is when a gift is made to a spouse. There is no penalty (waiting period) when assets are transferred to your spouse, regardless of when it is done or the amount.

The question raised above, giving your children $10,000, is a common misconception when it comes to asset protection planning.  Many people confuse the IRS rules with the Medicaid rules.  Under IRS regulations, we are each permitted to make gifts of up to $15,000 per person each year without having to file a gift tax return.  However, under the Medicaid rules, those gifts will almost certainly subject to donor to a Medicaid penalty if they require nursing home care within 5 years of the gift.

Likewise, “selling” your $400,000 house to your kids for $1 is, in reality, gifting your kids $399,000, again creating a Medicaid penalty (with some exceptions).

When discussing these confusing rules with people either during a seminar or a meeting, I am often told that it is a lot for them to remember.  My response is usually that it is quite simple – you do not have to remember all of the rules and (sometimes more importantly) all of the exceptions, you just need to know an experienced elder law attorney.

Please contact one of our experienced elder law attorneys if you have any questions or need assistance with planning.

When it comes to protecting your assets from the costs of a long-term illness, such as a nursing home, the Medicaid Asset Protection Trust is a staple planning technique.  It is an effective way to protect your home (and other property) as well as certain liquid assets in the event you require long-term nursing home care in the future (after five years).

The Medicaid Asset Protection Trust (“MAPT”) is a form of irrevocable living trust.  This means that the Grantor (or Settlor), the person setting up the trust, cannot revoke the trust.  It is this feature, in part, that protects the assets in the trust from a nursing home and Medicaid.

But what happens if the Grantor needs nursing home care before the end of the five-year waiting period?

For example, if Joan establishes a MAPT today and transfers ownership of her home to the trust, she is transferring legal ownership to the trust.  This means that for Medicaid purposes she has made a gift (or an “uncompensated transfer”) of her home, subjecting her to a penalty (or waiting) period for Medicaid eligibility if she requires nursing home care within the five years of her placing her home into the trust.  At the time Joan established the trust, she was a relatively healthy 68-year-old.  She had no significant health issues.  Unfortunately, Joan suffered a serious and debilitating stroke 18 months later, which lead to her needing to enter a nursing home permanently.  Joan did not have significant liquid assets.  Her home was her most valuable asset (which is why she was trying to protect it from such a situation).

This is an example where the trust has to be “undone” or revoked.  However, Joan cannot revoke an irrevocable trust by herself.  In New York, we have a statute (law) which sets forth how to revoke such a trust.  It requires the consent of all parties involved, the Settlor, the Trustee(s) and the beneficiary(ies), who must all be adults.  In Joan’s case, her three children were the Trustees and beneficiaries and all consented to the revocation of the trust, which would allow the house to be put back into Joan’s name and for Joan to implement an alternate plan to protect a portion of the value of her home.  But that’s a story for another day….

So, it is possible to revoke an irrevocable trust, but that should not be the plan – to simply think you can set up a trust and just revoke if needed in the future.  Establishing a MAPT can be extraordinarily powerful and effective in asset protection planning, but it should be done in coordination and counsel with an experienced elder law and estate planning attorney.

Please feel free to contact us so that one of our experienced attorneys can assist you.

I have a client who several years ago got one of those phone calls no parent ever wants to get.

Her daughter, Susie, was a freshman at a college in upstate New York after having graduated in the top 10% of her class of her high school on Long Island, where she grew up and where her parents lived.

A few months into her first year away at college, where she was doing very well and had made several new friends, one of Susie’s friends called her parents to let them know that Susie was in a pretty bad car accident.  The friend told them that Susie was in the hospital but she wasn’t sure how she was doing.

The parents, incredibly shaken by the news, called the hospital (which was some 6 hours away) to inquire about Susie. However, Susie was 19 years old, and in the eyes of the law was an adult who has to give permission to speak to others about her care or other medically related needs.  Unfortunately, Susie had not given such consent previously not was she able to do so at that time.  Susie did not have a HEALTH CARE PROXY!

Of course, she didn’t have a health care proxy.  Why would a 19-year-old, perfectly healthy young woman, need a health care proxy?

Well, this is story explains one reason why everyone age 18 and older should have a health care proxy.  The proxy is a legal document where you can name someone to make health care decisions for you, including getting medical records and information, if you become unable to make such decisions for yourself.  You can (and should, if possible) also name an alternate agent in the event your primary agent is unable or unwilling to make those decisions for you.

As soon as possible after your child turns 18 (and is no longer considered a “child”), you should ask them to execute a Health Care Proxy.  Whether they are going away to school or staying at or near home, there really is no reason to not have such an important document.

If you are receiving Medicaid benefits in the community (ie, getting care at home), you are probably enrolled with a Managed Long Term Care (MLTC) provider.  The MLTC contracts with various home care agencies who provide the care.

As part of the 2018/2019 budget, the New York State Department of Health (overseers of the program) will enact a number of changes which could have a negative impact on individuals receiving care services.  Some of the changes:

  • Members who enroll in a new MLTC plan after December 1, 2018 will be “locked in” to that plan for 9 months after the first 90 days of being enrolled. In other words, you will not be able to change plans (and will therefore be stuck with a particular plan) after 90 days, for at least 9 months.
  • An individual who is “permanently placed” in a nursing home for 3 or more months will no longer be able to enroll in an MLTC plan. Similarly, someone who is already enrolled in an MLTC plan will be disenrolled after 3 months of permanent placement. This leads to concern that an MLTC may seek to have someone placed permanently in a nursing home instead of providing (paying for) significant care at home to save money.
  • Beginning in October, MLTC plans must reduce/limit the number of licensed home care agencies they contract with, raising concerns about people potentially losing aides they may have had for a long period of time and who they feel comfortable with if an agency will no longer have a contract with the MLTC.

Effective as of October 18, 2018, the Veteran’s Administration (VA) will be implementing significant comprehensive changes to the pension benefit rules.  These rules were actually published back on January 2015 but have not been implemented until now.

Some background first.  The VA pension (often referred to as “Aid and Attendance”) is a monthly benefit payable to a qualifying veteran, or to his or her surviving spouse.  This benefit is to help pay for “unreimbursed medical expenses” and is subject to financial eligibility.  It is often used to offset the care of help at home or in an assisted living facility, as well as nursing home costs.  It is these eligibility rules that are changing as of October 18.

Here is a summary of the more significant changes –

 

Net Worth

“Net worth” will be defined as the maximum community spouse resource allowance for Medicaid purposes. For 2018, that amount is $123,600.  The amount will increase by the same percentage as the cost-of-living increase for Social Security benefits.  Differing from Medicaid however, Net Worth for VA purposes is defined as “the sum of a claimant’s or beneficiary’s assets and annual income.”

The following example is from the new regulations – “For purposes of this example, presume the net worth limit is $123,600.  The claimant’s assets total $117,000 and annual income is $9,000. Therefore, adding the claimant’s annual income to assets produces new worth of $126,000.  This amount exceeds the net worth limit.” 38 CFR §3.275(b)(4).

For a married veteran, the net worth includes the assets and income of both spouses.

 

Definition of “Assets”

There is a new definition for the term “assets”.  Assets are defined as “fair market value of all property that an individual owns, including all real and personal property…less the amount of mortgages….”  38 CFR §3.275(a).

 

Exclusions from “assets”

The primary residence remains an excluded assets for eligibility purposes and if sold the proceeds will not count as long as they are used to purchase another residence within the same calendar year. The claimant must be living in the residence for it to be excluded.

Personal effects “suitable to and consistent with a reasonable mode of life” will be excluded from assets.  Examples may be appliances and family vehicles.  38 CFR §3.275(b)(2).

 

Asset Transfers and Penalty Periods

One of the most significant changes coming as of October 18, there will be a look back period and the implementation of a penalty period (period of ineligibility) for the transfer of assets during the look back.

There will only be a transfer penalty for the transfer of a “covered asset”, which is defined as an asset that “was part of the claimant’s net worth, was transferred for less than fair market value, and if not transferred, would have caused or partially caused the claimant’s net worth to exceed the net worth limit…” 38 CFR §3.276(a)(2).  In other words, only an amount that was transferred in excess of the net worth amount would create a penalty period.  In addition, under the new rules, an asset that is converted into an annuity will create a transfer penalty.

The look back period will be the 36 months immediately prior to the VA receiving a pension claim.

 

Importantly, transfers made before October 18, 2018, will be disregarded by the VA and WILL NOT incur a transfer penalty.

There will be no transfer penalty for transfers to a trust established for the benefit of a child if the VA has rated the child incapable of supporting himself and there is no way the veteran, veteran’s spouse, or veteran’s surviving spouse may benefit from the trust.

Calculating the Penalty Period – the penalty period will be calculated by using the maximum annual pension rate for the aid and attendance allowance for the appropriate category divided by 12 (rounding down to the nearest whole dollar).  For example, for a married veteran claimant, this would be the amount available with one dependent.  The penalty begins the first day of the month after the transfer, with a maximum penalty imposed of 5 years.

 

THE TIME TO PLAN IS NOW!

In light of these important and restrictive changes, it is imperative to implement asset protection planning now.  If you are a veteran or the surviving spouse of one, please contact us immediately to discuss how our experienced attorneys can help you protect your assets and allow you to avail yourself of this important VA benefit if you need it in the future.

Attend one of our upcoming information sessions.