Returning From a Nursing Home to the Home

Senior woman sitting on the wheelchair aloneWhat are the options available to a long-term care resident who wants to return home? Consider using the Home and Community Based Services (HCBS) centered planning rules to help the resident transition back into the community. The care plan can be written in a manner to facilitate the resident’s discharge to the community.  If the individual experiences delay on the part of the Managed Care Organization (MCO) in updating the planning, the individual has a right to a service plan at her request and then annually, or upon a change in condition. Should the individual encounter delays by the MCO’s or if the individuals requested by the resident fail or decline to attend important meetings, one solution may be to involve an Omsbudsman and/or the Managed Long Term Services and Supports (MLTSS) offices, which can enforce a service plan. Generally, the initial meeting should be used to generate a list of action items, including the identification of the Medicare cutoff date and the filing of a MLTSS Medicaid application, obtaining therapies to strengthen the individual for her return to the community. A second meeting may be necessary to draft the plan. Any plan adopted must differentiate between paid and unpaid services to the individual. For instance, if a grandchild is not willing to provide free care and services on a Saturday evening, this should be stated in the plan.

Under the HCBS person-centered planning rules, the MCO must hold a care conference at the time and place selected by the resident.  A care conference is a meeting held by social worker, nurse and other long term care professionals to discuss the best care plan for the resident. The care needs and preferences of the resident are discussed and a written plan of care is documented. The care plan must reflect the goals and objectives for care. For instance, if the resident who is unable to move without assistance, needs to be provided with an air mattress and needs to be turned every two hours to prevent bedsores, this should be stated in the care plan. The cultural affinities of the resident may also be stated in the care plan.

The resident is entitled to have a representative in the care planning process. This can, but does not need to be, his or her financial power of attorney. The resident should not wait for the providers to initiate the process. The MCO must provide the resident with enough information so that he or she can make an informed decision.  If the resident is being discharged back into the community, and will require care 24/7, the post-discharge plan of care must provide whether any unpaid services is going to be performed on a volunteer versus paid basis. The MCO cannot require family members or friends who are not willing to commit to providing free care on a continuing basis to provide the care without compensation.  If various therapies will be needed to strengthen the individual so that she may return to the community, a physician’s order for skilled therapy should be incorporated into the care plan.

The written service plan prepared and implemented through the MCO must spell out how the individual will transition from care in a facility to care in the community and should identify specific goals and services. What funding is available to facilitate an individual’s transition back to the community?  Under the post-eligibility treatment of income rules found at 42 C.F.R. § 435.72, the individual may keep all of her income up to a limit of $2,005.00 per month for up to six months, which can be used to pay rent for an apartment in the community.

The discharge service plan should be prepared taking into consideration the unique abilities and preferences of the disabled and whatever decision –making capacity the soon-to-be discharged resident has retained.  Where the resident is unable to make and implement care-related decisions independently, one possibility is to empower the resident by involving him or her in a collaborative, or supportive decision making (SDM), process.  In this model, the resident awaiting discharge helps define the post-charge plan of care through the assistance of “supporters,” who can help the resident plan the he or she will receive in the community. The SDM decision-making model works best when the “supporters” remain available and cooperative in assisting with the implementation of the decision selected by the disabled or incompetent individual. SDM can be incorporated into the in the discharge planning process for an individual with limited or diminishing capacity. If this is not feasible, where there is not already a power of attorney, alternatives may include obtaining a limited guardianship order (as opposed to a plenary guardianship order) and using the limited guardianship process to define and constrain the authority of the facility’s representative in the discharge process, so that the discharge plan optimally furthers the best interests of the resident returning to the community. Finally, the resident department from a nursing home has a right to seek a Fair Hearing upon transfer or discharge and the service plan itself should incorporate appeal/Fair Hearing rights incorporate within the plan.

Questions? Let Jane know.

Jane Fearn-Zimmer is a shareholder in the Elder and Disability LawTaxation, and Trusts and Estates Groups. She dedicates her practice to serving clients in the areas of elder and disability law, special needs planning, asset protection, tax and estate planning and estate administration. She also serves as Chair of the Elder & Disability Law section of the NJSBA.

 

 

When Are My Federal Benefits Protected?

electronic money.jpgSenior citizens and disabled persons are particularly susceptible to debt and money issues. For those living on a fixed income, losing part or all of the federal government benefit on which the recipient depends on food and shelter and everyday living expenses can be devastating.

If an individual owes certain types of federal debt, (for example, unpaid taxes, interest and penalties due to the Internal Revenue Service, an overpayment by the Social Security Administration, student loan debt and debt from Base Exchanges on military installations), federal benefits can be reduced to repay these obligations.  Fortunately, there are protections in place under federal law for important government benefits.

For example, the first $9,000 in Supplemental Security Income (SSI) benefits paid to an individual each year is protected from any offset. Veteran’s benefits generally cannot be offset, except to recoup an over payment from Veterans’ benefits. Federal student loan payments, other payments by the Department of Education, the Black Lung Act, and “tier two” Railroad Retirement benefits, are also protected.

Under an interim Treasury Rule, the most recent two months of electronic deposits from federal benefit payment for SSI, federal Civil Service Retirement Benefits, Veteran’s Benefits, and payments by the Railroad Retirement Board, Treasury Department, and the Office of Personnel Management, are protected against garnishment. Once the federal benefit is deposited electronically into the account, it cannot be taken by the government for a period of at least two months. During this time, the electronically deposited funds must available to the account holder.

Only funds electronically deposited into the account are protected under this rule.  If money is deposited via a check, money order or inter-account transfer, such funds are not protected by this rule and can be subjected to garnishment.

One solution is to use a Direct Express prepaid debit card.  Funds can be electronically deposited to the card. The funds on the card are available to the cardholder, and cannot be garnished. However, the cards are highly regulated and tend to have high fees.

State law may offer additional consumer protections. Other protections may be available under the federal Consumer Credit Protection Act (CCPA), Chapter 7 or 13 bankruptcy petitions, the Fair Debt Collection Practices Act, and state statutes of limitations.  Consultation with a bankruptcy, consumer protection and/or an elder law attorney is recommended before debt or garnishment becomes an issue.

Questions? Let Jane know.

Jane Fearn-Zimmer is a shareholder in the Elder and Disability LawTaxation, and Trusts and Estates Groups. She dedicates her practice to serving clients in the areas of elder and disability law, special needs planning, asset protection, tax and estate planning and estate administration. She also serves as Chair of the Elder & Disability Law section of the NJSBA.

 

 

Social Security Benefit Increase for 2019

Social Security Benefit Increase for 2019

Beginning with their January 2019 payment, Social Security and Supplemental Security Income recipients will receive larger benefit amounts, due to a 2.8 per cent cost-of-living adjustment (COLA) (the largest increase since 2012).

The Social Security program will see other changes in 2019, including:

  • The full retirement age is delayed to age 66 and six months for individuals turning age 62 during 2019;
  • A person claiming his or her Social Security benefit before full retirement age will receive a decreased benefit amount; and
  • Medicare Part B premiums are also scheduled to increase to $134 monthly for Medicare enrollees with taxable income below or equal to $87,000 annually, and more for higher income recipients.

Questions? Let Jane know.

Jane Fearn-Zimmer is a shareholder in the Elder and Disability LawTaxation, and Trusts and Estates Groups. She dedicates her practice to serving clients in the areas of elder and disability law, special needs planning, asset protection, tax and estate planning and estate administration. She also serves as Chair of the Elder & Disability Law section of the NJSBA.

What is a Medicaid Penalty Period?

medicaid money.jpg

Medicaid is a joint federal and state program that provides funding for long-term care in a nursing home, an assisted living facility, an adult medical day care program or at home. As a means-tested public benefit program, there are strict asset and income requirements. A single individual who wishes to qualify for Medicaid can have no more than $2,000 in countable assets in his or her name and if both members of a married couple seek Medicaid, they can have no more than $3,000 in assets in either or both of their names. There are somewhat higher limits, where one member of a married or a civil union couple will remain in the community independently and the other member will apply for Medicaid.

Generally speaking, an individual cannot give away his or her money and immediately qualify for Medicaid without being subject to a Medicaid penalty period. What does that mean? A penalty period is a period of time during which Medicaid will not pay for the care of the applicant, as a consequence of gifting during the five years immediately prior to the date of filing of the Medicaid application.

“Gifting” for Medicaid may not always be obvious.  Unverified withdrawals from a joint bank account by a child for cash payments of the parent’s expenses may be penalized as gifts. This happened in E.S. v. D.M.A.H.S. and Bergen County Board of Social Services, (Final Agency Decision, N.J. OAL Docket No. HMA 9477-2014, December 11, 2014).

What can you do if you are preparing to file a Medicaid application and the applicant has already given away more than $1,000 during the past five years?  Having the right documentation in hand is very important. Collect and keep financial statements, receipts, notes in checkbook registers and calendars to substantiate cash transactions.  If cash was paid for utility bills, medications, or for groceries, do you have a receipt or a prescription log from a pharmacy? Was a store loyalty card used? If there was gambling, are there statements available from the casino, to substantiate the amounts and dates of the losses?

Documenting that the uncompensated transfers were made exclusively for a purpose other than expediting Medicaid eligibility can also be an option. This can work when the client was living actively in the community at the time of the transfer. See Estate of M.M. v. DMAHS and Union County Division of Social Services, (Final Agency Decision, NJ OAL Docket No. HMA 13911-08, May 27, 2009) (reversing the imposition of any Medicaid transfer penalty for the transfer of $25,000 to a daughter by the Medicaid applicant, when she was living independently at home prior to traumatic onset of disability).

Questions? Let Jane know.

Jane Fearn-Zimmer is a shareholder in the Elder and Disability LawTaxation, and Trusts and Estates Groups. She dedicates her practice to serving clients in the areas of elder and disability law, special needs planning, asset protection, tax and estate planning and estate administration. She also serves as Chair of the Elder & Disability Law section of the NJSBA.

 

Critical Update – New Veteran’s Improved Pension Rules: What It Means for U.S. Veterans & Their Families

Critical Update on New Veteran's Improved Pension Rules: What It Means for U.S. Veterans & Their Families

Many veterans and their spouses with cognitive impairment or who require assistance with their activities of daily living rely on the Veterans Improved Pension to pay for their care.  The benefit is a needs-based monthly payment as high as $1,176 per month for a surviving spouse and $2,169 monthly for a veteran in 2018. As such, the benefit is suitable to fund an assisted living co-pay, or care in the home.

Eligibility depends in part on the claimant’s net worth.  Up until October 17, 2018, prospective claimants can transfer assets to family or to a trust, without any penalty or a lookback period, unlike Medicaid.  But this will soon change.

On October 18, 2018, the old rules will sunset and new rules, which will make it more difficult for some veterans to qualify for the Improved Pension, will go into effect on the following day. As such, veterans now have a very narrow planning opportunity, but the planning window is closing fast. The new rules will bring about major changes to the eligibility rules for the Improved Pension, including:

  1. Denials to claimants with net worth exceeding the sum of $123,600. Net worth means the sum of a claimant’s or a beneficiary’s assets and annual income. If the claimant’s net worth falls below this threshold, eligibility will be feasible.
  1. Penalty periods. Penalties will now be imposed for gifts made after October 18, 2018.  A penalty period is a temporary disqualification for the Improved Pension or other applicable needs-based benefit. During the penalty period, the claimant does not receive the Improved Pension benefit. The length of the penalty period is derived from the total assets given away during the three year period running retroactively from the date of the filing of the claim, divided by the maximum annual pension rate (MAPR). The penalty may be as long as five years. Here is an example illustrating how the penalty period will be computed:

Example:

Assume that Sergeant O’Leary, an honorably discharged U.S. military veteran who served on active duty for at least 90 days during a period of wartime, owns countable assets in the sum of $130,000.

Sergeant O’Leary needs assisted living care and wants to qualify for the Improved Pension.

Sergeant O’Leary buys an irrevocable annuity on November 15, 2018, in the principal amount of $10,000.  Because the annuity is irrevocable, after the expiration of any “look see” period required by local law, Sergeant O’Leary cannot liquidate the annuity. Throughout the term of the annuity, the annuity payments made to Sergeant O’Leary will be treated as income to him in computing his net worth for the Improved Pension. See 38 C.F.R. § 3.276(a)(5)(ii).

If Sergeant O’Leary applies for the Improved Pension (or any other needs-based benefit) any time between November 15, 2018. Sergeant O’Leary’s three year lookback period for the annuity purchase begins on December 1, 2018. If Sergeant O’Leary files a claim during the three year lookback period, he will be subjected to a penalty due to the irrevocable annuity purchase.

How is the penalty computed? If, when Sergeant O’Leary purchased the annuity, the MAPR in effect was $24,000 annually, that computes to a $2,000/monthly penalty divisor.  Based on this MAPR factor, the penalty for  the irrevocable annuity is computed at 5 months ($10,000 divided by $2,000 month equals 5 months).

  1. Grandfathered transfers. Gifts made before October 18, 2018 will be grandfathered into the old rules and will not result in a penalty.
  1. Size based residential real property exemption. The primary home and up to two acres of surrounding land are disregarded from the claimant’s assets for the net worth test, regardless of value.
  1. New limitations on medical expenses deductible in computing net worth. As of October 18, 2018, only certain categories of medical expenses can be used to offset the claimant’s income for purposes of the net worth test. Expenses for unlicensed in-home care providers can no longer reduce net worth, unless the disabled individual is receiving health care or custodial care, and the payments are commensurate with the number of hours that the provider attends to the disabled person. In addition, the disabled individual must also have been awarded Aid and Attendance or is Housebound; or a physician, physician’s assistant, certified nurse practitioner, or clinical nurse specialist must have stated in writing that, due to a physical, mental, developmental, or cognitive disorder, the disabled individual requires the health care or custodial care that the in-home attendant provides.

Questions? Let Jane know.

Jane Fearn-Zimmer is an attorney at Flaster Greenberg PC that specializes in veteran affairs. She’s an accredited attorney with the U.S. Veterans Administration, the editor of the Elder Law Report, Including Special Needs Planning, a national trade journal for elder law and special needs attorneys, and is very educated on the new changes and what it means for veterans across the U.S.

Can A Computer Deny My Medicaid Application?

Jane Fearn-Zimmer take on the role of artificial intelligence when establishing medicaid eligibility In the information age, computer programs are increasingly relied upon to streamline and facilitate important decisions. A number of states require online applications for Medicaid.  In New Jersey and other states, Medicaid caseworkers have access to Social Security databases and even monthly bank balances, which are otherwise protected under bank secrecy laws.  Bank accounts in addition to those listed by the applicant on the Medicaid application can be identified with computer matching data. The computerized process is unquestionably far more efficient than the old-school method, which involved a lot of early mornings and late nights, during which the attorney responsible for filing the Medicaid application would manually review every transaction listed on every page of up to five years of bank statements and then compare available withdrawal and deposit slips with all of the contemporaneous deposits and withdrawals for multiple accounts, in effort to “verify” that there were no other unknown accounts throwing off income.  In these situations, a computer program which can scan the bank statements and identify unverified deposits is a godsend. However, two recent Medicaid cases from opposite regions of the United States recently prompted me to ponder whether there should be limits on the use of computer programs in determining or terminating Medicaid eligibility.

Earlier this month, a federal district court Medicaid case focused on the use, by the Arizona Medicaid agency, of the Health-e-Arizona Plus computer program, in processing welfare benefit applications.  Darjee v. Betlach, No. CV-16-00489-TUC-RM (DTF) (Dist. Ariz., September 5, 2018) was brought on behalf of multiple Medicaid enrollees, who argued that the computer programs placed them at risk of undue delays in the proper processing of their applications, in violation of the federal Medicaid Act.

Apparently, once their important information was entered into the Health-e Arizona Plus program, the information was accessible only within the Medicaid application it was entered on, and the software program did not import the missing information into a subsequent Medicaid application for the same individual. The result was that information entered on earlier Medicaid applications was not considered on subsequent ones, resulting in inadvertent decreases in benefit entitlements.  A federal lawsuit was filed on behalf of those Medicaid enrollees, whose welfare benefits were improperly reduced by Health-e-Arizona program.  Their benefits, however, were later restored. Plaintiffs alleged ongoing and systemic improper Medicaid benefit reductions in violation of the due process clause of the Fourteenth Amendment and the federal Medicaid Act, based on the use of the computer program.

As the Darjee case shows, even computer programs have their limits. Computers do not have empathy, do not care about fairness, will not always identify additional information needed to determine Medicaid eligibility, and will certainly not go the extra mile to obtain the necessary documents for the applicant.

Especially in New Jersey, where Medicaid eligibility denials for “failure to verify” are common, this can be problematic.  In A.F. v. D.M.A.H.S, No. A-2163-16T1 (N.J. Super., App.Div., July 23, 2018), the Morris County Board of Social Services terminated the Medicaid benefits previously authorized to a quadriplegic of many years, who was completely dependent on the personal care financed by the terminated Medicaid benefit. In an Orwellian twist (which you knew was coming), the reason cited for the termination was the alleged failure to verify two life insurance policies, neither of which was owned by A.F. and as to which no further details were revealed.

Because A.F. held no incidents of ownership in the policies, A.F. could have not verified the policies on a timely filed Medicaid eligibility redetermination.  Although the policy was ultimately revealed on Fair Hearing to be a term life insurance policy with no cash surrender value, the agency refused to waive a few weeks’ delay to re-instate benefits for A.F., who was a severely disabled individual.  The administrative law judge re-instated A.F.’s Medicaid eligibility on Fair Hearing, but the state Medicaid agency director reversed this decision, forcing A.F.’s attorney to challenge the decision of the agency director in the Appellate Division.  Fortunately, A.F. prevailed in the Appellate Division, but justice delayed can be justice denied.

My take-away from these decisions is that while artificial intelligence can be helpful, it remains critical to enlist the assistance of a seasoned Medicaid attorney to timely identify, gather and organize all of the financial documents needed to establish Medicaid eligibility.  While a computer program can definitely expedite a complex eligibility determination process easier, there is no substitute for the human touch in the Medicaid application process.

Questions? Let Jane know.

Jane Fearn-Zimmer is a shareholder in the Elder and Disability LawTaxation, and Trusts and Estates Groups. She dedicates her practice to serving clients in the areas of elder and disability law, special needs planning, asset protection, tax and estate planning and estate administration. She also serves as Chair of the Elder & Disability Law section of the NJSBA.

 

Jane’s Top Tips for Planning for the Elderly and the Disabled In light of the Tax Cuts and Jobs Act of 2017

Jane Fearn-Zimmer's Top Tips for Planning for the Elderly and the Disabled In light of the Tax Cuts and Jobs Act of 2017

Last week, my colleague, Steven Sacharow, Esquire, an outstanding and personable attorney who limits his practice to family law, adoptions, and “corporate divorces,” and I, co-presented a seminar addressing how the new federal tax laws will impact divorcing, elderly and/or disabled clients in in New Jersey and Pennsylvania. Here is a link to the Facebook Live presentation, and following are my top seven tips for saving hard earned dollars for the elderly and disabled under the new tax regime.

  1. Medicare is not a Long-Term Care Plan. Some folks expect Medicare to pay the cost of any care they may need. Medicare may provide for some short-term care, for a limited period of time, subject to a co-pay after the first twenty days per spell of illness, but will not provide for any long-term care absent a three day qualifying hospital stay. Do not let your loved one be placed on “observation status” in the hospital.
  2. Plan ahead for Long-Term Care. The sweeping cuts in the TCJA will increase pressure to trim federally funded social welfare programs. The House GOP budget plan proposed to trim over $5 billion dollars from the Medicare program over a ten year period, and an additional sum of more than $1.5 trillion dollars from Medicaid and other health insurance programs. Plans included proposals to change Medicare to a capped dollar benefit or a voucher system, which could be used to purchase health insurance. Block grants were proposed to shift Medicaid costs to the states (and ultimately the taxpayers). Lacking legal effect, these proposals may be harbingers of the future. Advance planning is more important than ever, and even crisis planning can help some individuals. Strategies to pay for long-term care may include long-term care insurance, planning with Medicaid compliant annuities and IRA annuities, and trusts.  For detailed strategies to save with long-term care insurance, see my handout, available here.
  3. Consider an ABLE account. ABLE accounts are special, tax-favored disability savings accounts available to qualified disabled individuals with a serious disability incurred prior to age 26.  In 2018, up to the sum of $15,000 per disabled beneficiary may be contributed to an ABLE account for the disabled beneficiary. (In 2018, an additional sum of up to $12,060 may be contributed by the disabled beneficiary from his or her own funds, in limited circumstances, as is further discussed in section 5, below). The funds on deposit in an ABLE account are disregarded in determining eligibility for federal public welfare benefits, such as Medicaid, Supplemental Security Income (SSI), Supplemental Nutritional Assistance (SNAP), Section 8 housing and other programs.  (The disregard is subject to a $100,000 cap for recipients of SSI).  Funds distributed from an ABLE account may be used to pay for qualified disability expenses, which can include shelter and housing expenses, educational, transportation, assisted technology, health and other expenses incurred with respect to the qualifying individual’s disability. Beginning this year, up to $15,000 of funds on deposit in a 529 educational savings account may be rolled over annually, tax-free into an ABLE account for the beneficiary of the 529 educational account, or a sibling or step sibling of the 529 account beneficiary, provided that the ABLE account beneficiary is a qualified disabled individual. For more information, see my blog post on ABLE accounts.
  4. Only one ABLE account and one $15,000 contribution per calendar year per qualified disabled beneficiary. This general rule, subject to some exceptions, can be a concern in families of divorce, due to communication issues. Accountants, attorneys and financial planners can help their clients by reminding them of the rule in their annual year end planning letter, on their websites or in their intake materials.
  5. Leverage the ABLE contribution. The TCJA now allows some qualified disabled individuals to contribute up to the sum of $12,060 from their taxable income to an ABLE account, in addition to the $15,000 annual contribution, which is tied to the annual exclusionary amount of IRC 2503. The saver’s credit may also be available to some ABLE account beneficiaries.
  6. Don’t forget about deductions! The TCJA left intact the credit for the elderly and disabled under IRC 22, and the ability to deduct the excess of the taxpayer’s reasonable and necessary medical expenses in excess of 7.5% of adjusted gross income. Deductible medical expenses may include health insurance premiums, some long-term care insurance premiums, some cosmetic procedures needed to ameliorate a deformity arising from a congenital birth defect or to correct a trauma or disfiguring disease. For example, breast reconstruction after a mastectomy may be deductible. Rev. Rul. 2003-57. The medical component of long-term care can sometimes be deductible, as can room and board costs, where medically necessary for dementia care. See Estate of Baral v. C.I.R., 137 T.C. 1 (July 5, 2011). The TCJA also left intact the deduction for qualified adoption expenses.
  7. ROTH IRA conversions may be new “Hotel California.” Given the historically low income tax rates, taxpayers in lower income tax brackets may want to consider converting a traditional IRA or a qualified plan account to a ROTH IRA, so long as the conversion does not bump the taxpayer into a higher bracket. However, the TCJA transformed the partial ROTH conversion into the new “Hotel California.” (i.e., “You can check in any time you want, but you can never leave.”)  Taxpayers can still return an excess ROTH contribution before December 31 of the taxable year in question, but can no longer partially re-characterize a ROTH IRA conversion after the conclusion of the taxable year.

Questions? Let Jane know.

Jane Fearn-Zimmer is a shareholder in the Elder and Disability LawTaxation, and Trusts and Estates Groups. She dedicates her practice to serving clients in the areas of elder and disability law, special needs planning, asset protection, tax and estate planning and estate administration. She also serves as Chair of the Elder & Disability Law section of the NJSBA.