Steps to Take for Transfers That Initially Would Appear to Give Rise to a Medicaid Penalty
1. I have seen many situations in which a parent has transferred virtually all of his or her assets to a child. If such parent goes into a nursing home within 60 months, there is a possibility of a substantial period of ineligibility.
2. One ameliorating possibility is that all transfers utilized by the child on behalf of the parent do not give rise to a penalty. The problem with such approach is that if a parent goes into a nursing home and funds are remaining, funds that have not been utilized for the parent are treated as uncompensated transfers.
3. If a transfer is made to a child and a parent goes into a nursing home very soon thereafter, the monies can be returned to the parent either directly or through a power of attorney. That is, any monies returned undo the transfer.
An interesting example would be the gifting of a home by a single parent to a child. If the parent goes into a nursing home more than 60 months after such gift, the gift would not be subject to penalty. Of course, the child’s basis (cost) becomes the basis of the parent.
A more interesting example is the parent giving the home to a child (or possibly two children) and the parent goes into a nursing home four years later. A possible planning technique would be for the child or children to pay for the nursing home for the remainder of the 60-month period.
Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.
© March 2009, Post #18
Monday, March 30, 2009
Friday, March 27, 2009
Payment by Applicant for Care or Services Provided by Child
Payment by Applicant for Care or Services Provided by Child
A common occurrence is for a child to provide services in the past for someone who is now an applicant for Medicaid. The State takes the position that at the time the services by the child were delivered that they shall be presumed to have been intended to be delivered without compensation. Therefore, funds transferred by the applicant within the look-back rule to compensate a friend or relative shall be presumed to have been Medicaid penalizing transfers. This presumption may be rebutted by documentary evidence which was in existence at the time of the delivery of care or services by the child.
Generally, “documentary evidence” refers to a writing in the nature of a caretaker agreement by which the child would provide the necessary services (parent lived in home with child), which is intended to be reimbursed by the parent and avoid penalty implications.
Such caretaker agreement should include the following:
1. The specific nature of services provided by the child (delineated in an attached schedule to this agreement).
2. An independent valuation of such services possibly by a geriatric care manager if such services include care for the parent, tending to medical needs and related matters. I believe the independent valuation is absolutely necessary to maintain the validity of the agreement. Many attorneys draft caretaker agreements which include the attorney’s estimate of such value. In this regard, the State takes the position that “the amount of compensation or the fair market value of asset transferred [by the applicant] shall not be greater than the prevailing rates for similar care or services in the community. That portion of compensation in excess of the prevailing rate shall be considered to be uncompensated value.” Any portion in excess of such rates shall be deemed a transfer for eligibility purposes.
An improperly drafted agreement can raise very serious problems, particularly under the new transfer rules.
Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.
© March 2009, Post #17
A common occurrence is for a child to provide services in the past for someone who is now an applicant for Medicaid. The State takes the position that at the time the services by the child were delivered that they shall be presumed to have been intended to be delivered without compensation. Therefore, funds transferred by the applicant within the look-back rule to compensate a friend or relative shall be presumed to have been Medicaid penalizing transfers. This presumption may be rebutted by documentary evidence which was in existence at the time of the delivery of care or services by the child.
Generally, “documentary evidence” refers to a writing in the nature of a caretaker agreement by which the child would provide the necessary services (parent lived in home with child), which is intended to be reimbursed by the parent and avoid penalty implications.
Such caretaker agreement should include the following:
1. The specific nature of services provided by the child (delineated in an attached schedule to this agreement).
2. An independent valuation of such services possibly by a geriatric care manager if such services include care for the parent, tending to medical needs and related matters. I believe the independent valuation is absolutely necessary to maintain the validity of the agreement. Many attorneys draft caretaker agreements which include the attorney’s estimate of such value. In this regard, the State takes the position that “the amount of compensation or the fair market value of asset transferred [by the applicant] shall not be greater than the prevailing rates for similar care or services in the community. That portion of compensation in excess of the prevailing rate shall be considered to be uncompensated value.” Any portion in excess of such rates shall be deemed a transfer for eligibility purposes.
An improperly drafted agreement can raise very serious problems, particularly under the new transfer rules.
Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.
© March 2009, Post #17
Wednesday, March 25, 2009
Qualifying for Medicaid
Qualifying for Medicaid
Ideally, representation for Medicaid eligibility should commence at least six months prior to the anticipated date of eligibility. Proper planning should result in the protection of resources, and, in many cases acceleration of the date of eligibility.
I. The General Problem
Counsel is engaged to represent an individual who recently entered a nursing home. Resources may include bank accounts, securities, E bonds, IRAs, life insurance policies and/or a residence. Individual may have current debts, such as doctor bills and credit card charges, and anticipates future debts, such as nursing home costs and income tax liabilities.
Topics which have been previously covered include the following:
1. Life insurance (Post #3)
2. Residence (Post ##6, 11 and 14)
3. Payment of Debts (Post #4)
4. Acceleration of Date of Eligibility (Post #5)
II. Priority of Payments
A. Debts, nursing home costs, the acquisition of excludable resources (such as burial arrangements) and income tax liabilities are the major expenditures incurred during the spend-down period. Debts should be paid immediately and expenditures paid as incurred with an eye toward the goal of meeting the resource requirement on the first day of the projected month. As indicated above, failure to meet the resource requirement by even a minimal amount requires that payment be made at the private rate until the resource requirement is met.
B. Projecting the date of eligibility is not an exact science as circumstances may require a revised eligibility date. On the expense side of the ledger are costs such as increased nursing home charges for a given month and unreimbursed medical bills. On the asset side of the ledger are receipts such as medical reimbursements and income tax refunds.
C. Maintaining an element of flexibility in making payments is the key to establishing a projected date of eligibility.
Example: Applicant is seeking July 1, 2009 eligibility. The resource requirement is $2,000. There is no deposit at the nursing home. All debts and expenses (including prepaid funeral arrangement of $5,000) have been paid. On June 25, applicant has $4,000 in resources. If funds not reduced to $2,000 on July 1, eligibility will be denied.
Contrast: Facts same as above except funeral costs have not been paid. Resources are, therefore, $4,000 (original June 25 balance) plus $5,000 (monies set aside for funeral, but not paid), or $9,000. Funeral arrangements should be made so that the cost is at least $7,000.
Rule: Prepaid funeral arrangements should be one of the last expenditures prior to the anticipated date of eligibility. The inherent flexibility in the amount of this payment allows for the resource requirement to be met.
D. One of the first liabilities to be determined and paid is state and federal income taxes. As indicated herein, failure to address this issue could result in delaying the date of eligibility, or even worse, could result in a liability when no monies are available or in payment from community spouse’s protected funds.
Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.
© March 2009, Post #16
Ideally, representation for Medicaid eligibility should commence at least six months prior to the anticipated date of eligibility. Proper planning should result in the protection of resources, and, in many cases acceleration of the date of eligibility.
I. The General Problem
Counsel is engaged to represent an individual who recently entered a nursing home. Resources may include bank accounts, securities, E bonds, IRAs, life insurance policies and/or a residence. Individual may have current debts, such as doctor bills and credit card charges, and anticipates future debts, such as nursing home costs and income tax liabilities.
Topics which have been previously covered include the following:
1. Life insurance (Post #3)
2. Residence (Post ##6, 11 and 14)
3. Payment of Debts (Post #4)
4. Acceleration of Date of Eligibility (Post #5)
II. Priority of Payments
A. Debts, nursing home costs, the acquisition of excludable resources (such as burial arrangements) and income tax liabilities are the major expenditures incurred during the spend-down period. Debts should be paid immediately and expenditures paid as incurred with an eye toward the goal of meeting the resource requirement on the first day of the projected month. As indicated above, failure to meet the resource requirement by even a minimal amount requires that payment be made at the private rate until the resource requirement is met.
B. Projecting the date of eligibility is not an exact science as circumstances may require a revised eligibility date. On the expense side of the ledger are costs such as increased nursing home charges for a given month and unreimbursed medical bills. On the asset side of the ledger are receipts such as medical reimbursements and income tax refunds.
C. Maintaining an element of flexibility in making payments is the key to establishing a projected date of eligibility.
Example: Applicant is seeking July 1, 2009 eligibility. The resource requirement is $2,000. There is no deposit at the nursing home. All debts and expenses (including prepaid funeral arrangement of $5,000) have been paid. On June 25, applicant has $4,000 in resources. If funds not reduced to $2,000 on July 1, eligibility will be denied.
Contrast: Facts same as above except funeral costs have not been paid. Resources are, therefore, $4,000 (original June 25 balance) plus $5,000 (monies set aside for funeral, but not paid), or $9,000. Funeral arrangements should be made so that the cost is at least $7,000.
Rule: Prepaid funeral arrangements should be one of the last expenditures prior to the anticipated date of eligibility. The inherent flexibility in the amount of this payment allows for the resource requirement to be met.
D. One of the first liabilities to be determined and paid is state and federal income taxes. As indicated herein, failure to address this issue could result in delaying the date of eligibility, or even worse, could result in a liability when no monies are available or in payment from community spouse’s protected funds.
Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.
© March 2009, Post #16
Monday, March 23, 2009
New Transfer Rules and Their Effect
New Transfer Rules and Their Effect
When I commenced writing articles for my blog, I promised I would not immediately discuss the new transfer rules as it is my opinion that the basics should be understood first. This article compares the prior transfer rules to the new transfer rules in a general sense as I feel the time is appropriate to have such discussion.
However, before discussing the current rules, I will review the prior transfer rules as a comparison.
I. Transfers – Prior Law
A. Transfers within 36 months of application are scrutinized by Medicaid; may or may not give rise to a period of ineligibility.
B. Transfer Penalty = amount transferred divided by penalty rate (assume $6,525). Example: individual transfer $30,000 to daughter upon entering nursing home. Penalty is $30,000/6,525 = 4.59 months (rounded down to 4 months).
C. New Jersey Medicaid has adopted the favorable rule that penalty periods are “rounded down”. For example, if a transfer gives rise to a period of ineligibility of 4.9 months, treat it as a penalty of 4.0 months. This favorable rule has been changed by the new law as will be discussed.
D. Numerous Exemptions to the Transfer Rules – Typical exemptions are transfers to spouse, real estate to designated individuals, transfer for sole purpose other than Medicaid eligibility, transfers to disabled child or trust for disabled child, transfers to a trust for a disabled individual under age 65 (the applicant), assets transferred that are returned to the individual.
II. The New Law (Transfers)
A. Transfers – deemed to have been made on date individual would otherwise be eligible for Medicaid but for the new law. Example considers only single applicant.
1. five-year lookback.
2. individual in nursing home.
3. assets down to $2,000 (except if income exceeds the income cap of $2,022 in which case the number is $4,000).
B. Basically, transfers within 60 months treated as made when assets reduced to $2,000. That is, the penalty commences when an individual is out of funds, and has no money to pay the nursing home. Statute makes no sense in that the period of ineligibility commences when individual has no funds to pay for nursing home.
C. Major Effects of New Transfer Law
1. Individual has no funds but has obligation to pay nursing home until end of penalty period.
2. Nursing home does not receive Medicaid nor payments from individual who has exhausted his or her assets. New law creates burden on nursing home to review resident’s records prior to admission to determine any transfers within 60 months. Nursing home might face financial problems as fewer people might apply to nursing homes in light of the onerous transfer rules.
3. Families will be seeking alternative living arrangements such as day care and home care.
4. Children might have to pay for nursing home costs till end of penalty period.
5. Long-term care insurance will increase in popularity, and the typical period of coverage will increase from 36 to 60 months. In addition, individuals will be more likely to purchase long-term care insurance options such as cost of living adjustment.
6. People will be transferring assets to children at younger ages (possibly when in good health to beat the 60-month rule).
7. Hardship waivers will be sought by applicant or by nursing home on behalf of applicant. Individual could qualify for hardship waiver for Medicaid when application of transfer rules would deprive individual of medical care such that individual’s health or life would be endangered or is deprived of food, clothing or necessities of life. Nursing home could apply for waiver on behalf of individual. States have the option to pay nursing home costs for 30-day period while application is pending.
Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.
© March 2009, Post #15
When I commenced writing articles for my blog, I promised I would not immediately discuss the new transfer rules as it is my opinion that the basics should be understood first. This article compares the prior transfer rules to the new transfer rules in a general sense as I feel the time is appropriate to have such discussion.
However, before discussing the current rules, I will review the prior transfer rules as a comparison.
I. Transfers – Prior Law
A. Transfers within 36 months of application are scrutinized by Medicaid; may or may not give rise to a period of ineligibility.
B. Transfer Penalty = amount transferred divided by penalty rate (assume $6,525). Example: individual transfer $30,000 to daughter upon entering nursing home. Penalty is $30,000/6,525 = 4.59 months (rounded down to 4 months).
C. New Jersey Medicaid has adopted the favorable rule that penalty periods are “rounded down”. For example, if a transfer gives rise to a period of ineligibility of 4.9 months, treat it as a penalty of 4.0 months. This favorable rule has been changed by the new law as will be discussed.
D. Numerous Exemptions to the Transfer Rules – Typical exemptions are transfers to spouse, real estate to designated individuals, transfer for sole purpose other than Medicaid eligibility, transfers to disabled child or trust for disabled child, transfers to a trust for a disabled individual under age 65 (the applicant), assets transferred that are returned to the individual.
II. The New Law (Transfers)
A. Transfers – deemed to have been made on date individual would otherwise be eligible for Medicaid but for the new law. Example considers only single applicant.
1. five-year lookback.
2. individual in nursing home.
3. assets down to $2,000 (except if income exceeds the income cap of $2,022 in which case the number is $4,000).
B. Basically, transfers within 60 months treated as made when assets reduced to $2,000. That is, the penalty commences when an individual is out of funds, and has no money to pay the nursing home. Statute makes no sense in that the period of ineligibility commences when individual has no funds to pay for nursing home.
C. Major Effects of New Transfer Law
1. Individual has no funds but has obligation to pay nursing home until end of penalty period.
2. Nursing home does not receive Medicaid nor payments from individual who has exhausted his or her assets. New law creates burden on nursing home to review resident’s records prior to admission to determine any transfers within 60 months. Nursing home might face financial problems as fewer people might apply to nursing homes in light of the onerous transfer rules.
3. Families will be seeking alternative living arrangements such as day care and home care.
4. Children might have to pay for nursing home costs till end of penalty period.
5. Long-term care insurance will increase in popularity, and the typical period of coverage will increase from 36 to 60 months. In addition, individuals will be more likely to purchase long-term care insurance options such as cost of living adjustment.
6. People will be transferring assets to children at younger ages (possibly when in good health to beat the 60-month rule).
7. Hardship waivers will be sought by applicant or by nursing home on behalf of applicant. Individual could qualify for hardship waiver for Medicaid when application of transfer rules would deprive individual of medical care such that individual’s health or life would be endangered or is deprived of food, clothing or necessities of life. Nursing home could apply for waiver on behalf of individual. States have the option to pay nursing home costs for 30-day period while application is pending.
Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.
© March 2009, Post #15
Thursday, March 19, 2009
The Significance of a Dependent Relative Residing in the Home with Applicant
The Significance of a Dependent Relative
Residing in the Home with Applicant
On many occasions a child will be residing in the home with applicant, and such child might not have any disability or problem of any kind. I have spoken to several Medicaid supervisors and they assumed that the home would be an available resource.
See Program Instruction No. 85-8-9 detailed below which indicates that if the home is occupied by a dependent relative, the home is an exempt resource. The letter ruling lists numerous relatives that can qualify as dependent, and “dependency” is defined broadly. Pursuant to N.J.A.C. 10:49-14.1(g) if a “family member” of a deceased Medicaid beneficiary has, prior to the Medicaid beneficiary’s death, continuously resided in the home which was also beneficiary’s primary residence, the Division will not enforce the lien until the property is sold, or the resident family member either dies or vacates the property. The only issue with such a ruling is that the words “family member” is not defined.
I provided this ruling to a Medicaid supervisor and she re-instituted its significance at a recent meeting with the authorities in Trenton.
Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.
© March 2009, Post #14
Residing in the Home with Applicant
On many occasions a child will be residing in the home with applicant, and such child might not have any disability or problem of any kind. I have spoken to several Medicaid supervisors and they assumed that the home would be an available resource.
See Program Instruction No. 85-8-9 detailed below which indicates that if the home is occupied by a dependent relative, the home is an exempt resource. The letter ruling lists numerous relatives that can qualify as dependent, and “dependency” is defined broadly. Pursuant to N.J.A.C. 10:49-14.1(g) if a “family member” of a deceased Medicaid beneficiary has, prior to the Medicaid beneficiary’s death, continuously resided in the home which was also beneficiary’s primary residence, the Division will not enforce the lien until the property is sold, or the resident family member either dies or vacates the property. The only issue with such a ruling is that the words “family member” is not defined.
However, it would seem, that a dependent member of the immediate family would allow the home to be excludable as a resource for eligibility purposes and would be not be subject to the lien until such time as the property is sold, the family member dies or vacates the property.Program Instruction No. 85-8-9
The Medicaid Only Manual (at N.J.A.C. 10:94-4.4(b)(i) provides for the exclusion of a home as a resource during temporary absences, including trips and hospitalizations. That policy is hereby expanded and appears below.
A home may be excluded as a principal place of residence during temporary absences so long as the individual intends, and may reasonably be expected to return home. With the exception appearing in the paragraph below, an absence of more than six months shall be assumed to indicate that the home no longer serves as the principal place of residence. That period may be extended only with approval from the Division of Public Welfare.
If the absence is not temporary and the home is occupied by a spouse or dependent relative, the home shall be considered to be the principal place of residence so long as the spouse or dependent relative continues to reside there, regardless of the length of the absence. In determining if the exclusion of a home applies, a dependent relative included only the following individuals: son, daughter, grandson, granddaughter, stepson, stepdaughter, mother, father, stepmother, stepfather, half-sister, half-brother, niece, nephew, grandmother, grandfather, aunt, uncle, sister, brother, stepsister, stepbrother, mother-in-law, father-in-law,
sister-in-law, brother-in-law, daughter-in-law, and son-in-law. The nature of the dependency (e.g., financial, medical, custodial or any other type of dependent relationship) of any such relative must be determined on a case-by-case basis and must be documented in the case record.
I provided this ruling to a Medicaid supervisor and she re-instituted its significance at a recent meeting with the authorities in Trenton.
Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.
© March 2009, Post #14
Wednesday, March 18, 2009
Community Spouse Not Limited to Community Spouse Resource Allowance After Date of Eligibility of Applicant
Community Spouse Not Limited to Community Spouse Resource Allowance
After Date of Eligibility of Applicant
Previously, it has been discussed (see Post 11) that after the applicant’s receives Medicaid, the community spouse is not limited by the Community Spouse Resource Allowance. Relevant administrative regulations are included for reference.
For example: (see Post 11, one of the reasons for transferring the house to the community spouse is that a sale by the community spouse of the primary residence after the applicant receives eligibility, would result in proceeds not subject to the Medicaid computations. Proceeds of a sale before the date of eligibility would be treated as part of the “pot” and, therefore, preclude current Medicaid eligibility.
Another common situation is an inheritance by the community spouse. N.J.A.C. 10:71-4.4(b)6. indicates that property in probate is an inaccessible resource. Therefore, if the community spouse is a beneficiary of the estate, his or her share of assets of the estate does not enter into the “pot” until distributed. If distribution occurs after the applicant receives Medicaid, the resources received are free without encumbrance. However, if distribution is made prior to eligibility, the resources become part of the “pot.”
Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.
© March 2009, Post #13
After Date of Eligibility of Applicant
Previously, it has been discussed (see Post 11) that after the applicant’s receives Medicaid, the community spouse is not limited by the Community Spouse Resource Allowance. Relevant administrative regulations are included for reference.
For example: (see Post 11, one of the reasons for transferring the house to the community spouse is that a sale by the community spouse of the primary residence after the applicant receives eligibility, would result in proceeds not subject to the Medicaid computations. Proceeds of a sale before the date of eligibility would be treated as part of the “pot” and, therefore, preclude current Medicaid eligibility.
Another common situation is an inheritance by the community spouse. N.J.A.C. 10:71-4.4(b)6. indicates that property in probate is an inaccessible resource. Therefore, if the community spouse is a beneficiary of the estate, his or her share of assets of the estate does not enter into the “pot” until distributed. If distribution occurs after the applicant receives Medicaid, the resources received are free without encumbrance. However, if distribution is made prior to eligibility, the resources become part of the “pot.”
Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.
© March 2009, Post #13
Monday, March 16, 2009
"Bread and Butter" Planning Techniques for Medicaid Eligibility
“Bread and Butter” Planning Techniques for Medicaid Eligibility
Many potential Medicaid eligibility cases do not require sophisticated planning techniques. Relevant administrative regulations are referenced.
I. Hypothetical
Husband is about to permanently enter nursing home. The husband and wife have the following assets:
Residence $($30,000 mortgage) $200,000 (net of mortgage)
Bank accounts (jointly held) 100,000
Life insurance on husband
($100,000 face, $5,000 cash value) 5,000
Investments (jointly held) 25,000
Debts and anticipated debts are $10,000, which includes attorney’s fees, accountant’s fees and needed repairs on the home.
The planning goals are Medicaid eligibility, maximum preservation of assets and avoidance of loss of Medicaid eligibility.
II. Recommendations
A. Transfer all bank accounts and investments into the name of the wife for management purposes.
B. Residence should be transferred into wife’s sole name. Home should not be sold by wife until after husband is eligible for Medicaid (spouse’s cash not counted toward husband’s assets after husband’s eligibility).
C. Life insurance policy should be cashed in after institutionalization (see N.J.A.C. 10:71-4.4(b)4.).
D. After husband enters the nursing home, pay off mortgage ($30,000), debts and expenses ($10,000), cash in life insurance.
Note: The Community Spouse Resource Allowance is $65,000 (one-half total of bank accounts, investments and cash value of insurance). The amount which is not protected need not be used on nursing home costs, and payment accelerates the date of Medicaid eligibility.
E. Balance of funds used to pay nursing home costs and wife’s expenses in the community. Other possibilities are prepayment of taxes, prepaid funeral funds and general debts.
Suggestion: For alternative arrangements, see Additional Post-Eligibility Considerations, Post No. 2.
Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.
© March 2009, Post #12
Many potential Medicaid eligibility cases do not require sophisticated planning techniques. Relevant administrative regulations are referenced.
I. Hypothetical
Husband is about to permanently enter nursing home. The husband and wife have the following assets:
Residence $($30,000 mortgage) $200,000 (net of mortgage)
Bank accounts (jointly held) 100,000
Life insurance on husband
($100,000 face, $5,000 cash value) 5,000
Investments (jointly held) 25,000
Debts and anticipated debts are $10,000, which includes attorney’s fees, accountant’s fees and needed repairs on the home.
The planning goals are Medicaid eligibility, maximum preservation of assets and avoidance of loss of Medicaid eligibility.
II. Recommendations
A. Transfer all bank accounts and investments into the name of the wife for management purposes.
B. Residence should be transferred into wife’s sole name. Home should not be sold by wife until after husband is eligible for Medicaid (spouse’s cash not counted toward husband’s assets after husband’s eligibility).
C. Life insurance policy should be cashed in after institutionalization (see N.J.A.C. 10:71-4.4(b)4.).
D. After husband enters the nursing home, pay off mortgage ($30,000), debts and expenses ($10,000), cash in life insurance.
Note: The Community Spouse Resource Allowance is $65,000 (one-half total of bank accounts, investments and cash value of insurance). The amount which is not protected need not be used on nursing home costs, and payment accelerates the date of Medicaid eligibility.
E. Balance of funds used to pay nursing home costs and wife’s expenses in the community. Other possibilities are prepayment of taxes, prepaid funeral funds and general debts.
Suggestion: For alternative arrangements, see Additional Post-Eligibility Considerations, Post No. 2.
Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.
© March 2009, Post #12
Friday, March 13, 2009
Real Estate Planning Ideas for a Married Couple
Real Estate Planning Ideas for a Married Couple
Protection of the home is the most common and most significant Medicaid planning and eligibility issue. Unfortunately, the planning possibilities are often overlooked. Some of the techniques (e.g. spousal planning) are rendered uncertain due to Medicaid’s position that the failure of a surviving spouse to exercise elective share rights gives rise to a period of ineligibility (see N.J.A.C. 10:71-4.10(b)3., see also Comment 8). Relevant administrative regulations are included for reference.
Planning Ideas for the Married Couple
A. Significant Medicaid rules to consider in the planning process.
1. Transfer rules do not apply to the transfer of the home to designated individuals.
i. spouse
ii. child under 21 or child who is blind or disabled
iii. a sibling who has an equity interest in the home and who was residing in the home for at least one year prior to the date of institutionalization
iv. son or daughter who resided in the home for at least two years prior to institutionalization and provided care which permitted individual to reside at home rather than go to a nursing home.
2. The home constitutes exempt property if resided in by spouse.
3. If home owned by applicant and not resided in by spouse or applicant is unmarried, an absence of more than six months is assumed to indicate that the home is no longer the principal residence - N.J.A.C. 10:71-4.4(b)1.i.
4. After determination of eligibility for Medicaid, no resources of the community spouse are deemed available to the institutionalized spouse.
B. Transfer of home to spouse
1. Typical factual situation: Potential Medicaid recipient and spouse own residence as a tenancy by the entirety. Assume individual qualifies for Medicaid and after qualification, community spouse predeceases and residence passes by operation of law to the Medicaid recipient. In such a case, the residence is no longer exempt and the house would have to be sold and the proceeds applied to payment of nursing home costs before Medicaid eligibility would be reinstated.
2. Planning recommendation: Potential application should transfer interest in the home to the spouse. Spouse should devise residence to someone other than institutionalized individual. Assuming applicant and community spouse had no other assets, such disinheritance would be treated as a transfer by applicant under the new regulations. It is recommended that there be separate counsel for each spouse for this transaction.
Note: If property remained in joint tenancy, there would be no estate recovery upon the death of a Medicaid recipient survived by the community spouse. However, New Jersey Medicaid authorities take the position that if such property remains in the name of the community spouse, upon the death of the community spouse, the estate recovery provisions will apply to said property (with respect to Medicaid costs of the application). Therefore, a transfer of title into the sole name of the community spouse removes the property from the “estate” of a Medicaid recipient, and, therefore, from the estate recovery provisions.
3. Recommendations regarding subsequent sale of residence by community spouse after transfer: Community spouse should not sell residence until after institutionalized spouse qualifies for Medicaid at which time the resources of the community spouse are no longer deemed available to the institutionalized spouse. If the residence is sold by the community spouse before the institutionalized spouse qualifies for Medicaid, the proceeds become an available resource.
Contrast: Residence remains in joint names and is sold after institutionalized spouse qualifies for Medicaid. At such time, one-half the proceeds are allocated to the community spouse and one-half the proceeds are allocated to the Medicaid recipient, who would then lose Medicaid eligibility.
4. It is noted that a re-transfer of the home by the community spouse is not a protected transfer and is subject to transfer penalty. However, a transfer of the home by the community spouse after the institutionalized spouse qualifies for Medicaid should not result in a transfer penalty.
Comment: As indicated above, the regulations provide that the failure to exercise elective share rights is treated as transfer by the applicant and gives rise to a period of ineligibility. Therefore, the will of the community spouse and disinheritance become an issue. Notwithstanding, the above analysis presents several compelling reasons for transferring the residence to the community spouse (sale of residence by community spouse after eligibility, avoidance of lien if Medicaid recipient predeceases community spouse, avoidance of residence passing to Medicaid recipient by “operation of law” if community spouse predeceases, avoidance of loss of eligibility if residence sold while in joint names).
C. Purchase of home by community spouse
1. Typical factual situation: Potential Medicaid recipient and spouse reside in a rented apartment. Couple have $350,000 in liquid resources. Individual enters nursing home.
2. Planning recommendation: Residence should be purchased in name of community spouse. The home constitutes exempt property if resided in by spouse. Community spouse should not sell residence until after applicant qualifies for Medicaid.
3. The above is another example of the purchase of an excludable resource to protect funds.
D. Recent sale of home
1. Factual situation: Couple with minimal resources have recently sold their jointly-owned residence in anticipation of the need for monies to pay husband’s nursing home costs (not being aware of Medicaid rules). Husband enters nursing home several days prior to seeking advice of counsel).
2. Recommendation: Community spouse should immediately purchase another home with the proceeds of sale from the prior home. N.J.A.C. 10:71-4.4(b)8.(ii) indicates that the proceeds of sale constitute an excludable resource to the extent utilized to purchase another home within three months of the date of receipt of the proceeds.
Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.
© March 2009, Post #11
Protection of the home is the most common and most significant Medicaid planning and eligibility issue. Unfortunately, the planning possibilities are often overlooked. Some of the techniques (e.g. spousal planning) are rendered uncertain due to Medicaid’s position that the failure of a surviving spouse to exercise elective share rights gives rise to a period of ineligibility (see N.J.A.C. 10:71-4.10(b)3., see also Comment 8). Relevant administrative regulations are included for reference.
Planning Ideas for the Married Couple
A. Significant Medicaid rules to consider in the planning process.
1. Transfer rules do not apply to the transfer of the home to designated individuals.
i. spouse
ii. child under 21 or child who is blind or disabled
iii. a sibling who has an equity interest in the home and who was residing in the home for at least one year prior to the date of institutionalization
iv. son or daughter who resided in the home for at least two years prior to institutionalization and provided care which permitted individual to reside at home rather than go to a nursing home.
2. The home constitutes exempt property if resided in by spouse.
3. If home owned by applicant and not resided in by spouse or applicant is unmarried, an absence of more than six months is assumed to indicate that the home is no longer the principal residence - N.J.A.C. 10:71-4.4(b)1.i.
4. After determination of eligibility for Medicaid, no resources of the community spouse are deemed available to the institutionalized spouse.
B. Transfer of home to spouse
1. Typical factual situation: Potential Medicaid recipient and spouse own residence as a tenancy by the entirety. Assume individual qualifies for Medicaid and after qualification, community spouse predeceases and residence passes by operation of law to the Medicaid recipient. In such a case, the residence is no longer exempt and the house would have to be sold and the proceeds applied to payment of nursing home costs before Medicaid eligibility would be reinstated.
2. Planning recommendation: Potential application should transfer interest in the home to the spouse. Spouse should devise residence to someone other than institutionalized individual. Assuming applicant and community spouse had no other assets, such disinheritance would be treated as a transfer by applicant under the new regulations. It is recommended that there be separate counsel for each spouse for this transaction.
Note: If property remained in joint tenancy, there would be no estate recovery upon the death of a Medicaid recipient survived by the community spouse. However, New Jersey Medicaid authorities take the position that if such property remains in the name of the community spouse, upon the death of the community spouse, the estate recovery provisions will apply to said property (with respect to Medicaid costs of the application). Therefore, a transfer of title into the sole name of the community spouse removes the property from the “estate” of a Medicaid recipient, and, therefore, from the estate recovery provisions.
3. Recommendations regarding subsequent sale of residence by community spouse after transfer: Community spouse should not sell residence until after institutionalized spouse qualifies for Medicaid at which time the resources of the community spouse are no longer deemed available to the institutionalized spouse. If the residence is sold by the community spouse before the institutionalized spouse qualifies for Medicaid, the proceeds become an available resource.
Contrast: Residence remains in joint names and is sold after institutionalized spouse qualifies for Medicaid. At such time, one-half the proceeds are allocated to the community spouse and one-half the proceeds are allocated to the Medicaid recipient, who would then lose Medicaid eligibility.
4. It is noted that a re-transfer of the home by the community spouse is not a protected transfer and is subject to transfer penalty. However, a transfer of the home by the community spouse after the institutionalized spouse qualifies for Medicaid should not result in a transfer penalty.
Comment: As indicated above, the regulations provide that the failure to exercise elective share rights is treated as transfer by the applicant and gives rise to a period of ineligibility. Therefore, the will of the community spouse and disinheritance become an issue. Notwithstanding, the above analysis presents several compelling reasons for transferring the residence to the community spouse (sale of residence by community spouse after eligibility, avoidance of lien if Medicaid recipient predeceases community spouse, avoidance of residence passing to Medicaid recipient by “operation of law” if community spouse predeceases, avoidance of loss of eligibility if residence sold while in joint names).
C. Purchase of home by community spouse
1. Typical factual situation: Potential Medicaid recipient and spouse reside in a rented apartment. Couple have $350,000 in liquid resources. Individual enters nursing home.
2. Planning recommendation: Residence should be purchased in name of community spouse. The home constitutes exempt property if resided in by spouse. Community spouse should not sell residence until after applicant qualifies for Medicaid.
3. The above is another example of the purchase of an excludable resource to protect funds.
D. Recent sale of home
1. Factual situation: Couple with minimal resources have recently sold their jointly-owned residence in anticipation of the need for monies to pay husband’s nursing home costs (not being aware of Medicaid rules). Husband enters nursing home several days prior to seeking advice of counsel).
2. Recommendation: Community spouse should immediately purchase another home with the proceeds of sale from the prior home. N.J.A.C. 10:71-4.4(b)8.(ii) indicates that the proceeds of sale constitute an excludable resource to the extent utilized to purchase another home within three months of the date of receipt of the proceeds.
Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.
© March 2009, Post #11
Tuesday, March 10, 2009
Significance of the 90-Day Rule
Significance of the 90-Day Rule
Pursuant to N.J.A.C. 10:71-4.8(a)2., an applicant will be eligible for Medicaid when couple’s total resources reduced by community spouse’s share, are equal or less than $2,000 subject to exclusions. Also see N.J.A.C. 10:71-4.8(a)3., which requires that ownership of the community spouse’s share be transferred to the community spouse within 90 days of Medicaid eligibility. Therefore, eligibility will be determined on the basis of total resources of applicant and spouse (i.e. joint accounts), but if applicant has more than $2,000 at the time of eligibility, the County Board will check ownership 90 days after eligibility.
Example: Total resources of institutionalized individual and spouse at date of institutionalization are $300,000. The community spouse resource allowance is $109,560.
Assuming all other requirements are met, institutionalized individual will be eligible for Medicaid when total resources are equal to or less than $111,560.
Therefore, if total resources at the time of application considering those of the applicant and those of the community spouse are equal or less than the appropriate amounts, Medicaid eligibility will be granted. However, within 90 days the Community Spouse Resource Allowance must be in the name of the community spouse and the applicant cannot have more than his or her resource allowance.
Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.
© March 2009, Post #10
Pursuant to N.J.A.C. 10:71-4.8(a)2., an applicant will be eligible for Medicaid when couple’s total resources reduced by community spouse’s share, are equal or less than $2,000 subject to exclusions. Also see N.J.A.C. 10:71-4.8(a)3., which requires that ownership of the community spouse’s share be transferred to the community spouse within 90 days of Medicaid eligibility. Therefore, eligibility will be determined on the basis of total resources of applicant and spouse (i.e. joint accounts), but if applicant has more than $2,000 at the time of eligibility, the County Board will check ownership 90 days after eligibility.
Example: Total resources of institutionalized individual and spouse at date of institutionalization are $300,000. The community spouse resource allowance is $109,560.
Assuming all other requirements are met, institutionalized individual will be eligible for Medicaid when total resources are equal to or less than $111,560.
Therefore, if total resources at the time of application considering those of the applicant and those of the community spouse are equal or less than the appropriate amounts, Medicaid eligibility will be granted. However, within 90 days the Community Spouse Resource Allowance must be in the name of the community spouse and the applicant cannot have more than his or her resource allowance.
Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.
© March 2009, Post #10
Monday, March 9, 2009
Theory for Using Date of Institutionalization for Computation of Protected Amount
Theory for Using Date of Institutionalization for Computation of Protected Amount
Community spouse requires certainty after institutionalization in order to protect the Community Spouse Resource Allowance. If such a determination were not made as of the date of institutionalization, at any point in time the community spouse would not be aware of the amount of resources that could be protected and may have expended more funds than necessary. Therefore, the computation of the allowance is made prospectively.
Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.
© March 2009, Post #9
Community spouse requires certainty after institutionalization in order to protect the Community Spouse Resource Allowance. If such a determination were not made as of the date of institutionalization, at any point in time the community spouse would not be aware of the amount of resources that could be protected and may have expended more funds than necessary. Therefore, the computation of the allowance is made prospectively.
Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.
© March 2009, Post #9
Thursday, March 5, 2009
Community Spouse Resource Allowance - Importance of Timing Payment of Expenditures
Community Spouse Resource Allowance
Importance of Timing Payment of Expenditures
A. Expenditure of resources in excess of the Community Spouse Resource Allowance.
Assume husband is the institutionalized spouse. Must resources that are not part of the Community Spouse Resource Allowance be used for nursing home costs? It is a common misconception that resources that are not part of the Community Spouse Resource Allowance must be expended on nursing home costs. There is no such requirement in the statute.
Planning Point: If institutionalization is imminent, try to delay expenditures until after institutionalization in order to maximize asset protection.
B. Assume $100,000 in spousal resources (excluding the home) and home needs repairs and improvements of $20,000. If costs are incurred before institutionalization, the Community Spouse Resource Allowance will be $40,000. However, if costs are incurred after institutionalization, treat such costs as reducing the husband’s share, and the Community Spouse Resource Allowance will be $50,000.
Attorney’s fees would be another expenditure that should be paid after institutionalization.
Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.
© March 2009, Post #8
A. Expenditure of resources in excess of the Community Spouse Resource Allowance.
Assume husband is the institutionalized spouse. Must resources that are not part of the Community Spouse Resource Allowance be used for nursing home costs? It is a common misconception that resources that are not part of the Community Spouse Resource Allowance must be expended on nursing home costs. There is no such requirement in the statute.
Planning Point: If institutionalization is imminent, try to delay expenditures until after institutionalization in order to maximize asset protection.
B. Assume $100,000 in spousal resources (excluding the home) and home needs repairs and improvements of $20,000. If costs are incurred before institutionalization, the Community Spouse Resource Allowance will be $40,000. However, if costs are incurred after institutionalization, treat such costs as reducing the husband’s share, and the Community Spouse Resource Allowance will be $50,000.
Attorney’s fees would be another expenditure that should be paid after institutionalization.
Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.
© March 2009, Post #8
Tuesday, March 3, 2009
Rules for Medicaid Planning
Rules for Medicaid Eligibility
The goal in standard Medicaid planning is for the single individual or the single applicant to have assets reduced to the appropriate number. Similarly, the funds of a married community spouse are to be considered when the applicant is married.
The rules and examples are set forth below:
A. Single individual: $2,000, $4,000 if monthly income is greater than $2,022.
B. Married individual: Asset limitation on community spouse (one-half total resources as of date of institutionalization). 2009 maximum: $109,560, minimum: $21,912.
Example 1: Total Resources: $100,000
Community Spouse Resource Allowance: $ 50,000
Example 2: Total Resources: $300,000
Community Spouse Resource Allowance: $109,560
Example 3: Total Resources: $ 30,000
Community Spouse Resource Allowance: $ 21,912
Subsequent articles will discuss other aspects of the Community Spouse Resource Allowance.
Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.
© March 2009, Post #7
The goal in standard Medicaid planning is for the single individual or the single applicant to have assets reduced to the appropriate number. Similarly, the funds of a married community spouse are to be considered when the applicant is married.
The rules and examples are set forth below:
A. Single individual: $2,000, $4,000 if monthly income is greater than $2,022.
B. Married individual: Asset limitation on community spouse (one-half total resources as of date of institutionalization). 2009 maximum: $109,560, minimum: $21,912.
Example 1: Total Resources: $100,000
Community Spouse Resource Allowance: $ 50,000
Example 2: Total Resources: $300,000
Community Spouse Resource Allowance: $109,560
Example 3: Total Resources: $ 30,000
Community Spouse Resource Allowance: $ 21,912
Subsequent articles will discuss other aspects of the Community Spouse Resource Allowance.
Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.
© March 2009, Post #7
Monday, March 2, 2009
Property Owned by Applicant Residing with Caretaker Child
Property Owned by Applicant Residing with Caretaker Child
The transfer rules do not apply to the transfer of the home to designated individuals. The materials refer to such individuals as “protected transferees.” For the purposes of the following discussion, the “protected transferee” is assumed to be a child of the individual who provided care to the individual at home.
A. The child must have (i) resided in the home for at least two years prior to institutionalization; and (ii) provided care which permitted individual to reside at home rather than go into a nursing home.
Note: The statute is silent as to the permissible time of transfer.
B. The subjective determination of whether a child has provided the requisite care is made by the County Board upon application for Medicaid. An unfavorable determination by the Board results in a denial of eligibility and a substantial period of ineligibility.
Planning Point: The request for protected transferee status should be made in conjunction with the application for Medicaid. This approach avoids the risk of a period of ineligibility. If the applicant is incompetent, seek court approval for the transfer in a guardianship proceeding and incorporate the written approval by the County Board in your papers.
Planning Point Before Medicaid Application Process: Counsel will often be presented with situation in which a child is residing with applicant in applicant’s residence and applicant-client desires Medicaid planning and does not desire to transfer the home (or counsel is of the opinion that home should be transferred as part of the Medicaid application process). Counsel should incorporate language in potential applicant’s power of attorney that allows residence to be transferred to child if appropriate for Medicaid planning purposes.
C. If protected transferee is one of several children who are equal beneficiaries under the applicant’s will, arrangements should be made by the children to avoid litigation. However, the transfer should be made solely to the child with protected status. Written approval to the transfer from the other children should be obtained if transfer is being made pursuant to a guardianship proceeding.
Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.
© February 2009, Post #6
The transfer rules do not apply to the transfer of the home to designated individuals. The materials refer to such individuals as “protected transferees.” For the purposes of the following discussion, the “protected transferee” is assumed to be a child of the individual who provided care to the individual at home.
A. The child must have (i) resided in the home for at least two years prior to institutionalization; and (ii) provided care which permitted individual to reside at home rather than go into a nursing home.
Note: The statute is silent as to the permissible time of transfer.
B. The subjective determination of whether a child has provided the requisite care is made by the County Board upon application for Medicaid. An unfavorable determination by the Board results in a denial of eligibility and a substantial period of ineligibility.
Planning Point: The request for protected transferee status should be made in conjunction with the application for Medicaid. This approach avoids the risk of a period of ineligibility. If the applicant is incompetent, seek court approval for the transfer in a guardianship proceeding and incorporate the written approval by the County Board in your papers.
Planning Point Before Medicaid Application Process: Counsel will often be presented with situation in which a child is residing with applicant in applicant’s residence and applicant-client desires Medicaid planning and does not desire to transfer the home (or counsel is of the opinion that home should be transferred as part of the Medicaid application process). Counsel should incorporate language in potential applicant’s power of attorney that allows residence to be transferred to child if appropriate for Medicaid planning purposes.
C. If protected transferee is one of several children who are equal beneficiaries under the applicant’s will, arrangements should be made by the children to avoid litigation. However, the transfer should be made solely to the child with protected status. Written approval to the transfer from the other children should be obtained if transfer is being made pursuant to a guardianship proceeding.
Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.
© February 2009, Post #6
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