The Date of Determining the Community Spouse Resource Allowance

The date of determining the Community Spouse Resource Allowance is defined as being determined the first day of the first month of institutionalization.

However, institutionalization is not limited to nursing home placement. In actuality, it would commence the first day of the first month that a person went into a hospital. If the person were receiving home care, the determination would be the first day of the first month of home care.

Any combination of the above would apply, the determination being made at the earliest date. However, if the continuous period can be broken by a thirty-day time period then the above does not apply. For example, if a married individual enters a nursing home for rehabilitation and returns home without home care for a period of in excess of thirty days, the Community Spouse Resource Allowance would have to be re-determined at the appropriate date. As mentioned in Post 50, if the Community Spouse Resource Allowance increases after institutionalization, but before the date of determination of Medicaid eligibility, the individual gets the benefit of the increased 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.
© December 2010, Post 126

Planning for Transfers Post May 26, 2010

As indicated by Medicaid Communication No. 10-02 and No. 10-06 (see Post 113), the state has denied reverse half-a-loaf planning. My argument in favor of reverse half-a-loaf planning is set forth in post 113.

Suppose an individual after May 26, 2010, (Med Com 10-06) has made a transfer in contemplation of reverse half-a-loaf planning. Since transfers after May 26, 2010, Med Com 10-06 has rejected the planning.

The question then becomes what steps to take now that the gift has been made and the give-back will not work. My recommendation is that the transferee use the funds for the care of the applicant. In an ideal world, reverse half-a-loaf can be reinstated and a give-back effectuated at that time. In reality, this is unlikely. Therefore, the gifted funds should be used for the care of the applicant. If the funds are exhausted prior to the five-year look-back period, no funds will be saved, but the individual will qualify for Medicaid. If the monies (considering pension and social security), sustain the applicant for the five-year period, any monies gifted in excess of the funds used cover the look-back period are preserved.


Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.
© December 2010, Post 127

Basic Rules and Planning Techniques of Medicaid

I would like to summarize in a succinct form some of the basic ideas presented in prior blogs.

It is necessary to understand the general distinction between Medicare and Medicaid. Medicare is a federal benefit that an individual receives if he or she attains the age of 65 years. Medicare generally pays for an individual's doctor bills and health care costs. Medicaid is also a governmental benefit. The first type of Medicaid, known as Community Medicaid, has strict income and asset requirements and pays for health care needs. The second type of Medicaid, which is the major topic of this blog, pays for nursing home costs once the requirements for Medicaid are met.

There is an intertwining relationship between estate planning and Medicaid planning. One of my cardinal rules for Medicaid planning is that once undertaken other considerations are irrelevant. For example, it is necessary that all assets be liquidated so that they can be used for planning or as part of the spenddown process. Estate planning then becomes irrelevant.

Often a client will say to me that he or she desires to preserve a certain stock or not to liquidate an IRA since these resources are a value to them. I point out the necessity for liquidating assets so that the date of eligibility can be projected and Medicaid planning be undertaken.

The major issue relating to the decision to undertake estate planning versus Medicaid planning relates to the size of the individual's estate. That is, if an individual has sufficient assets (including pension and social security), nursing home costs may be insignificant. In such case, the individual's will and estate planning are the major concerns. The average stay in a nursing home is slightly more than two years; therefore, a prudent approach to an individual with substantial assets would lean toward estate planning rather than Medicaid planning.

Institutional Medicaid is the governmental benefit that pays for long-term care. Community Medicaid is another form of Medicaid that is equivalent to welfare.

One form of Medicare pays for medical coverage for doctors, hospitals, etc. Another form of Medicare will partially pay for nursing home costs. However, it is institutional Medicaid and not Medicare that pays for long-term stay in a nursing home. Institutional Medicaid has rules of eligibility. Institutional Medicare pays for rehabilitation or skilled nursing in a facility for 20 days in full and for the following 80 days in part, the gap being known as the co-pay. The co-pay is often paid by Medigap insurance, such as AARP or Blue Cross Blue Shield. However, Medicare pays for a nursing home stay only during such time that an individual is making improvement as deemed by a committee at the facility. After Medicare has expired, payment must be made to the nursing home.

Other than the various financial issues in obtaining a Medicaid eligibility letter, a necessary element of Medicaid eligibility is to obtain a PAS for the applicant. This is an examination by the county nurse which will be given almost immediately if a potential applicant is in a hospital. Otherwise, the family is at the mercy of the schedule of the nurses who often cover several counties. Financial eligibility without a PAS will result in eligibility being delayed until the PAS is obtained.

There are several methods by which a nursing home can be reimbursed for the stay of an individual, some of which are temporary and some of which are permanent. However, it is necessary to keep all of these in mind in projecting the date of eligibility. The methods of payment of a nursing home include Medicare (for a limited period of time), Medicaid, long-term care insurance and private pay.

There is a misconception that Medicare will pay for a long-term institutionalization. As can be seen this is not the case. That is , Medicare will pay for a limited stay at the nursing home if the requirements discussed above are met. Although many nursing homes require private pay for a guaranteed period of time, this requirement is illegal. Also, the family will be presented with a nursing home application, including the key document which is the agreement.

If an individual anticipates purchasing long-term care insurance, an expert should be consulted. The permutations of the type of policy are virtually infinite and will be discussed.

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

The Medicaid recipient must not exceed resources of $2,000 (or $4,000) on the first of any month. However, after the applicant receives Medicaid, the community spouse is not limited by the Community Spouse Resource Allowance.

Protection of the home is the most common and most significant Medicaid planning and eligibility issue. Unfortunately, the planning possibilities are often overlooked. For example, as has been discussed above, the Community Spouse Resource Allowance (amount spouse can have for an individual to get Medicaid), is not limited after an individual receives Medicaid. Therefore, application of this rule has particular significance in the real estate area. For example, transfer of the home to a healthy spouse is a common planning technique. The community spouse should delay sale of the residence until the applicant receives Medicaid. That is, after the institutionalized spouse qualifies for Medicaid, the resources of the community spouse are no longer deemed available to the institutionalized spouse. The proceeds of sale can be received by the community spouse free of the Medicaid rules. If the residence is sold by the community spouse before the institutionalized spouse qualifies for Medicaid, the proceeds become an available resource.

There are numerous other planning techniques to protect the home. For example, if a disabled child resides in the home, the home is exempt from the Medicaid rules. A little known rule is that even if such child is not disabled, if the child resides in the home and is "dependent", the home is also protected. Dependency is broadly defined in terms as any family member and the nature of the dependency is also broad (e.g. financial, medical, custodial or other type of dependent relationship). There are numerous other methods for protecting the home that can be discussed with your attorney.

Certain transfers raise eligibility problems. The rules regarding such transfers are rather complicated. Transfers of property that are exempt include transfers to a disabled child, transfers to a spouse or transfer for a purpose other than to qualify for Medicaid.

Another unique asset regarding Medicaid eligibility is life insurance. Often an elderly client will have a small policy with a substantial cash value. While a group policy has no cash value, the aggregate face amount of all policies (including group) is considered in the determination of whether the cash value(s) is an excludable resource. That is, if the face value of a policy or policies (including group insurance) exceeds $1,500, the cash value is counted as a resource for Medicaid eligibility purposes.

The Medicaid application process is tedious. There are two basic documents I present to my clients at the meeting. One document is the list of information required by the respective County Boards of Social Services. The second document is the application for Medicaid. Therefore, in addition to meeting the aforementioned requirements by Medicaid, it is necessary to provide the information requested (such as marital status, pension and social security, and life insurance policies). There are planning techniques for protecting other assets which are the subject of much controversy with the Trenton Medicaid authorities.

I have often sought the need of other professionals in representing a client before the various County Boards of Social Services in seeking institutional Medicaid for a client. For example, the client may be coming to New Jersey and the family uncertain as to the appropriate type of facility available and appropriate. In such case, I recommend that the family consult with a geriatric care manager as to whether home, assisted living or institutional care might be the most appropriate place of residence. In this regard, the assessment of a geriatric care manager is necessary.

An accountant is often necessary in the spenddown process. For example, we may want to prepay income taxes, not only for the spenddown, but also to avoid the situation of an individual or a community spouse having to pay income taxes after the date of qualification for Medicaid.

Of course, if long-term care insurance is available, and I not only recommend such insurance, but have purchased it, this will cut down on the cost of the nursing home.

The Medicaid eligibility process is complicated. The process generally starts with a stay in the hospital and a request for a PAS. Then the individual enters a nursing home for rehabilitation (discussed above). The family must make a decision as to whether the individual remains in the nursing home and seeks institutional Medicaid.

Sometimes, this involves merely spending assets down to the required amounts. On other occasions, planning techniques, such as discussed above, are employed. Documents such as the nursing home application and the Medicaid application process require careful scrutiny.

As discussed above, there is an inter-relationship between Medicaid planning and estate planning.

"Doing nothing" can be a solution to Medicaid planning. For example, for a single individual, I review a client's resources, income from resources, pension, social security, benefits, etc. If the annual income from such resources and income from other sources (i.e. social security,) exceeds the approximate nursing home costs, my recommendation is that planning not be undertaken and that such income be used for the nursing home.

Finally, as discussed above, it is important that there be "access" to assets, generally pursuant to a power of attorney. In this way, monies can be used for the benefit of the individual, particularly with respect to nursing home costs.

Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.

© December 2010, Post 125

Basic Documents Needed by Clients in Estate Planning

It is time to summarize some basic concepts with respect to documents needed for estate planning.

There are several basic documents that I discuss with every older client whom I represent. However, many of these ideas also apply to younger individuals.

The basic documents for every person, particularly the elderly, are a will, a living will and a power of attorney.

A will is a document that directs how the assets in the name of the individual shall pass upon their death. The nature of the will depends upon the person's situation. For example, the purpose of the will might be to minimize death taxes, which can involve complicated estate planning. Or, the will might be that of a healthy spouse whose partner is in a nursing home, which has rather complicated considerations also.

However, one must keep in mind that a will is not the only document that disposes of assets upon an individual's death. Assets that pass under a will are known as probate assets and those that pass outside of a will are known as non-probate assets. Non-probate assets are those that may pass by beneficiary designation, such as life insurance, retirement plans or annuities. The beneficiary designations of such non-probate assets should be coordinated with the plan under the will.

It is my practice not to dictate to a client the terms of a will. I point out the alternatives, discuss advantages and disadvantages of different approaches, review the assets with the client and let the individual decide what is the best course to follow from a personal point of view. That is, in addition to the objective legal reasons for a will, it is the client's subjective intent (after understanding all possibilities) that should govern the overall estate plan.

It must be kept in mind that a will performs two functions. One is to dispose of one's assets in the appropriate manner. A will is also a legacy. That is, an individual often feels that his or her child has not met expectations and desires to "disinherit" such child. I point out to the individual that such language will be the individual's "legacy" and must be carefully considered before undertaken.

With respect to a power of attorney, the first point of significance is that the document must be "durable". That is, at law, a power of attorney is a consensual agreement by the person granting the power (the principal) and the individual given the power (agent). If an individual becomes incompetent, the ability to consent ceases. Therefore, it is necessary that the power of attorney be "durable" and, therefore, survives the incompetence of the principal. That is, for an elderly person, there is a need for someone to act on one's behalf if such individual becomes incompetent.

There is a form of power of attorney known as a "springing" power of attorney, which becomes effective only if a person is incompetent. I do not recommend such a power since a durable power of attorney avoids the issue of incompetence and a springing power of attorney would only be effective if an individual becomes incompetent. Therefore, the "springing" power of attorney has no benefit.

The key to a power of attorney is that it has language so that all assets of the principal are "accessible" to the agent. In this way, if the principal needs money for any reason, including a nursing home, and is not competent, the agent can "access" these funds.

Also, a power of attorney should have special language, such as the ability to access medical records if the principal (who generally is an elderly person) is unable to do so. The durable language allows this result. Also, a power of attorney should include planning language to cover a situation in which a person may enter a nursing home in the future. The language dealing with Medicaid planning depends upon the situation of the principal and will be discussed more fully in another blog.

It is my practice to reference any type of asset an applicant may have to make sure the power of attorney can be used to liquidate such asset. However, not all companies will require that the power of attorney have language relating to the specific asset. It is important that the power of attorney be done as soon as possible, particularly if the individual is failing. A power of attorney can only be done if the individual is competent.

A living will is a document which provides as to whether extraordinary methods be taken in case an individual cannot make the decision by himself or herself. There are several types of living wills. One form known as an "Appointment of Health Care Representative" gives the individual appointed under a living will the general authority to carry out the wishes of an individual based upon the individual's intent as conveyed to the appointee during lifetime. A second type of living will known as an "Advance Directive for Health Care" sets forth the desires for the individual in advance. For example, this document provides that treatment be withheld if it is "experimental". Such language creates an ambiguity as the definition of "experimental" can vary from medical institution to medical institution. Therefore, it is my recommendation that if an elderly person has someone that he or she trusts, the general grant of authority under the Appointment of Health Care Representative is preferable.

As can be seen, pro-forma language is not suitable for any of the documents discussed, and must be discussed individually in detail. That is, the client makes the final decision with respect to the format of each document, after being fully informed.


Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.
© November 2010, Post 124

Medicaid Planning for Residents

Suppose a husband and wife own a residence and one enters a nursing home. There are several possibilities regarding Medicaid planning. Firstly, the home is an exempt resource when one spouse enters a nursing home, as indicated in Post 11. If the home is transferred to the community spouse, and is sold or gifted by the community spouse after the applicant receives Medicaid, the home is protected.

Assume community spouse wants to reside in a home, but not the primary residence that currently exists. If the primary residence is sold, a second residence purchased within three months is exempt to the extent of the proceeds of sale of the first residence - see N.J.A.C. 10:71-4.4(b)8.ii.

Another possibility is to sell the residence and the community spouse move into an apartment. At the first day of the first month of sale, the community spouse resource allowance would apply to the community spouse and once the spenddown requirements are met, eligibility would be attained.

For a single person entering a nursing home, the house is exempt until sold for such period as allowed by the County Board. The County Boards vary on the time allowed. The balance of the proceeds would be subject to the spenddown process.

Finally, if a husband and wife have cash and live in an apartment and one enters a nursing home, purchase of a home by the community spouse would protect the cash and would be an exempt resource. Also, the community spouse resource allowance would enter into the picture.

Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.
© November 2010, Post 123

The Role of a Legal Assistant in an Elder Law Attorney's Office

The following is a description of how I utilize the talents of my qualified Legal Assistant and her comments regarding work performed:

My name is Juliet Rudy and I am often asked what are the duties of my job as a Legal Assistant. The purpose of this blog is to describe such duties.

Working in an Elder Law Attorney's office is varied and interesting. Meetings with clients can be fascinating. I often sit in on these meetings and take notes. Accurate note taking is highly important so that everything is correctly documented. If the client is applying for Medicaid, there will be numerous documents to request from the client. Once we have all these documents, the legal assistant needs to gather all the information and, in due course, apply for a date for the Medicaid application. The legal assistant will often draft a Transmittal Letter to accompany the application and often attend the meeting with the County Board of Social Services on certain cases. Of course, all documents are reviewed by Counsel prior to submission.

If the matter is an estate planning matter, the legal assistant will often draft the will by himself or herself after having interviewed the client. A more complicated will would require an attorney's assistance. Other documents which can be drafted by a legal assistant are the power of attorney and living will. Again, an attorney is always needed to review documents before drafted in final form.

Other areas of law covered in an Elder Care Attorney's office may include estate administration. A legal assistant can apply for probate and take on most of the duties of an administration like drafting and sending out letters of probate and undertaking a child support search under the attorney's guidance.

In a smaller office, a legal assistant may have general administrative and accounting duties, in addition to the legal duties.


Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.
© November 2010, Post 122

Current Status of Medicaid Planning

As indicated in Post 113, reverse half-a-loaf planning is no longer viable in the state of New Jersey. Therefore, other than the special techniques relating to the home or exempt transfers, the only planning available would be five-year planning.

That is, a potential applicant should transfer all resources and retain sufficient resources to pay for five years' nursing home costs. Therefore, any monies remaining after the look-back period have been saved from nursing home costs.

It is hoped that reverse half-a-loaf planning will be reinstated as indicated in my argument set forth in Post 113.


Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.
© November 2010, Post 121

Methods of Informing the Public of the Nature of Your Practice

In today's legal world, it is necessary to inform the public of the services which your office can render.

For example, I have found the website as an invaluable tool for describing the nature of your practice and type of services rendered. I have been fortunate enough to have a friend who is an expert on providing information by website and other means to inform the public of the work offered by my office.

It is highly recommended that an Elder Law attorney retain a person with such expertise, since the presentation of your work and experience in the proper manner requires a knowledge of the methods to inform the public.

Of course, public speaking in any venue is important. The key to public speaking is to adjust the nature of your speech to your audience. For example, I have spoken before local groups, support groups, continuing legal education programs and webinars, at law school and at national conferences. The topic may have been the same, but the level of technicality was adjusted for the audience.

Finally, it is absolutely necessary to have colleagues with whom you can discuss pending issues, as "no man is an island", especially in the Elder Law area.

Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.
© November 2010, Post 118

Some Basic Tax Issues in the Elder Law Area

It has been said that the "ideal" Elder Law attorney be knowledgeable both in the Medicaid rules and tax issues.

For example, if monies are transferred as part of a Medicaid plan (currently Reverse Half-a-Loaf is disfavored by the State, see Medcom 10-02 and 10-06), in any case, clients often have the impression that the receipt of monies gifted result in income. That is clearly not the case as Section 61 of the Internal Revenue Code provides that receipt of all funds results in taxable income except if there is a specific exclusion. Section 102 of the Internal Revenue Code provides that any monies gifted are not subject to income tax. Therefore, if transfers are made for any reason, it is only the earnings on the transfer that are subject to the tax and not the gift itself.

Another issue discussed in many of my blogs relates to transfer of a house (for example, see Post 6 dealing with transfer of a home to a "protected transferee"). This deals with transferring a home to a child who provided necessary care for two years before a person enters a nursing home. The law indicates in such a case a transfer of the home to the child is exempt from the transfer rules. I have recommended that the transfer not occur until the Medicaid application proceeding. The reasons are set forth in Post 6. An additional reason would be that if the individual dies before a Medicaid application, the basis of the house to the beneficiary will be "stepped-up" the date of death. However, once the property is transferred, there is a "carry-over basis" and the transferee will have the same basis as the donor.

Another misconception by clients is that distributions from an estate are subject to income tax. Under the fiduciary income tax rules, the distributions are only subject to tax to the extent of the estate income (technically referred to as distributable net income). Of course, there are exceptions to this rule, such as life insurance, the distribution of which is not subject to tax except for minor items, such as post-mortem dividends.

Any Medicaid planning or estate planning must include tax advice. The above are just some basic issues and rules to be discussed.


Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.

© October 2010, Post 117

Deposit in a Continuing Care Retirement Community

Under the current law, monies held as a deposit in a Continuing Care Retirement Community are treated as a resource. They are available for use in the facility, but prevent current Medicaid eligibility.

However, if the individual relocates to another nursing home, the deposit will be made available to such individual.

This opens up a planning opportunity since the monies returned from the deposit and other resources of the individual are now available for reverse half-a-loaf planning (see post 88).

Therefore, while such a living arrangement may be desirable, a decision must be made as to allow a parent to remain there or to do Medicaid planning by removing the funds and using the above-mentioned planning technique.

Of course, the viability of utilizing the reverse half-a-loaf question has been disallowed by the state. (Medicaid Communication 10-02, 10-06). My response to this denial is set forth in posting numbers 110 and 113.











Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.
© March 2010, Post 105

“Doing Nothing” as a Solution to Medicaid Planning

As part of my initial conference (assume client is single) is a discussion of a client’s resources, income from resources, pension, social security, veteran’s benefits, etc.

I then compute the approximate annual income from resources and the other sources to compare to nursing home costs. If such income exceeds or approximates nursing home costs, my recommendation is that planning not be undertaken and that such income be used for the nursing home.

Of course, you then run the risk that the person is in the nursing home for a lengthy period of time and, therefore, there could be a substantial depreciation of assets. However, keeping in mind that the average stay in a nursing home is slightly more than two years, a prudent approach in such a case would be to do nothing.

However, it is extremely important that there be “access” to the assets, generally pursuant to a power of attorney. In this way, the monies can be used for the benefit of the individual, particularly with respect to nursing home costs.

This is just an approach to consider and should not be treated as a recommendation.




Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.
© July 2009, Post 101

Estate Planning vs. Medicaid Planning

One of my cardinal rules for Medicaid planning is that once undertaken other considerations are irrelevant. For example, it is necessary that all assets be liquidated so that they can be used for planning or as part of the spenddown process. Estate planning then becomes irrelevant.

Often a client will say to me that he or she desires to preserve a certain stock or not to liquidate an IRA since these resources are a value to them. I point out the necessity for liquidating assets so that the date of eligibility can be projected and Medicaid planning be undertaken.

Another type of estate planning vs. Medicaid planning issue relates to the size of the individual’s estate. As pointed out in a prior blog, “doing nothing” may be a solution to Medicaid planning. That is, if an individual has sufficient assets (including pension and social security), nursing home costs may be insignificant. In such case, the individual’s will and estate planning become the focus of the attorney’s undertaking. The average stay in a nursing home is slightly more than two years; therefore, a prudent approach to an individual with substantial assets would lean toward estate planning rather than Medicaid planning.


Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.
© August 2009, Post 103

Changes in the Medicaid Law Over Time

We have seen Congress attempt to restrict Medicaid planning through the years.

COBRA, OBRA ’93 and the current attempt, the Deficit Reduction Act, are the major congressional changes since I have been practicing law.

Janice Chapin and I have discussed these numerous changes in our ICLE programs, particularly the Final Medicaid Regulations Finally, Hot Topics in Medicaid Planning, and The Impact of the Final Medicaid Regulations on Planning.

As I am not a constitutional lawyer, I do not feel that I can comment on the constitutionality of a federal statute. However, the most egregious changes have occurred in the Deficit Reduction Act (except for a limited time when Congress actually attempted to eliminate the possibility of a lawyer giving Medicaid advice, struck down on First Amendment basis) in that a transfer is deemed to be made not on the date the property is shifted, but rather at the date when the applicant would be “otherwise eligible” for Medicaid but for the transfer. Examples that would ruin the “otherwise eligible” requirement would be prior transfers or a non-excludable home.

The 60-month look-back (Post 15) is terrible in itself, but the problem is that it catches all transfers during the time period and moves them to the above-forward date.

Perhaps more important than the federal changes are the state regulations. Reference is the aforementioned ICLE publication, the Final Medicaid Regulations Finally. As mentioned in a prior blog, the book basically discusses New Jersey’s Medicaid law under OBRA ’93 and its violation of the federal law (i.e. federal pre-emption).

Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.
© June 2009, Post 98

Summary of Key Planning Ideas

I think this is an appropriate time at my blog site to summarize what I think are the key planning techniques which survive the new law. Rather than discuss them in detail I will summarize such techniques with a reference to the post number.

The key planning techniques are as follows:

1. Payment of Debts and Expenses (Post 4).
2. Property Owned by Applicant Residing with Caretaker Child (Post 6).
3. Real Estate Planning Ideas for a Married Couple (Post 11).
4. Community Spouse Not Limited to Community Spouse Resource Allowance After Date of Eligibility of Applicant (Post 13).
5. The Significance of a Dependent Relative Residing in the Home With Applicant (Post 14).
6. Preserving the Community Spouse Resource Allowance (Post 26).
7. The Problem of the Working Spouse (Post 33).
8. Property Owned Jointly With Other Than Spouse (Post 35).
9. Assets Transferred to a Disabled Child (Post 42).
10. The Necessity for Other Professionals (Post 46).
11. Inaccessible Resources (Post 48).
12. Policy Decisions Affect Medicaid Rules (Post 49).
13. Transfers of an Excludable Resource (Post 58).
14. The Importance of a Carefully Prepared Transmittal Letter (Post 67).
15. Spousal Refusal (Post 78).
16. Real Estate Expenses as Part of the Spenddown (Post 83).
17. Changes That Affect Medicaid Planning (Post 84).
18. Reverse Half-a-Loaf Planning (Post 88).
19. Sources of Information for Medicaid Rules (Post 91).
20. Monies Received During the Month (Post 96).

I feel that a summary of the above key posts would be beneficial in light of the topics presented.

Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.
© June 2009, Post 97

Utilization of Legal Staff in Medicaid Application Process

Although I have practiced Medicaid Law for in excess of thirty years, I find that proper utilization of legal staff can be an invaluable asset to a firm.

My assistant, Juliet Rudy, is a lawyer in England and Wales. Her skills and knowledge in the Medicaid area have been acquired in a very short period of time.

Juliet came to be my employee through Jewish Vocational Services, a placement agency for individuals of all ethnic backgrounds, which extends itself beyond description in making placements. In addition, the agency provides such services for free.

I made a call to the agency through a relative of mine and within two hours they provided me with Juliet's resume and I hired her immediately.

I suggest that in hiring staff that a Medicaid attorney consider hiring someone with the intelligence of Juliet so that the attorney can concentrate on generating the practice and focusing on the legal issues.

In today's economy, it is necessary to have the help of others as I pointed out in Post 46 (The Necessity for Other Professionals).

Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.

© September 2010, Post 116

Monies Received During the Month

Prior posts have indicated that Medicaid eligibility is determined on the first day of the month. Therefore, resources received during the month do not result in ineligibility unless not properly disposed of during the month. This issue has been addressed in Post 31 (the problem of recurrent disqualification). It is important to constantly monitor a recipient’s account during the month since the $2,000 (or $4,000) resource requirement for an applicant can be lost. Any use of the money (except for a gift) would be an appropriate spenddown. Clothes or prepaid funeral expenses would be typical for a single person. A married individual with a home could use the funds for reasonable expenses for the home.

Post 13 indicates that the community spouse resource allowance is not limited after eligibility of the applicant. Therefore, any monies received by the community spouse after that date are irrelevant. However, if the community spouse does receive funds prior to eligibility, such funds must be deal with in the same manner as discussed for the applicant. With respect to the community spouse, Post 50 indicates that the community spouse’s resource allowance changes annually and this should be considered, if applicable.

Post 3 indicates that under certain circumstances prior to eligibility, it would be desirable to increase the community spouse resource allowance (but not beyond the limit) by transferring life insurance of the applicant.

Another related problem discussed in Post 33 deals with the problem of the working spouse. In this situation, the receipt of monies by the community spouse on an ongoing basis precludes Medicaid eligibility. See Post 33 for the solution. It is important that the community spouse not resume working until eligibility of the applicant is granted, unless there is the possibility of reducing the receipt of funds below the community spouse resource allowance. Such hypothetical might be the existence of a substantial debt on the home such as a mortgage or reverse mortgage.

Finally, with respect to monies received during the month and the amount of the resource allowance, it is my practice to have the applicant qualify with lesser funds than the resource allowance to cover the possibility of a miscalculation resulting in ineligibility.


Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.
© June 2009, Post 96

Methods of Holding Account(s) of Medicaid Recipient

A common question is the form in which an account or accounts should be held in the name of a Medicaid recipient so as not to endanger Medicaid eligibility. I am providing the following list of preference in reverse order for your consideration:

1. Usually, individuals without the advice of counsel, have a joint account with the applicant and the spouse in which is placed the social security/pension of the applicant and the spouse. Such a procedure would result in being denied Medicaid or loss of eligibility. That is, Medicaid will treat the account as being completely the resource of the applicant and also completely the resource of the community spouse regardless of the source of funds.

2. An account may be held jointly with a child. Such a technique is okay, but you must make it clear that none of the child’s assets be placed into the account. Also, any withdrawal of funds by the child would be treated as a Medicaid gift and result in temporary ineligibility.

3. The best method for holding an account would be the child on behalf of the parent under a power of attorney. A separate account could be maintained for social security payments with the child designated as representative payee. Post 1 discusses this and related issues in greater detail.

4. Post 1 also indicates that under certain circumstances, the nursing home can be representative payee of the social security payments (read Post 1 carefully). Payments from qualified plans cannot be assigned due to restrictions under the Internal Revenue Code.


Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.
© June 2009, Post 93

Distributions of Inter Vivos Trusts Under the Deficit Reduction Act

The Federal Statute treats payments from an inter-vivos trust as assets disposed of by the individual and subject to the transfer rules - 42 U.S.C. 1396p(d)(3)(A)(iii), 42 U.S.C. 1396p(d)(3)(B)(i). Distributions to someone other than the Grantor from a revocable or irrevocable trust are subject to the transfer rules.

Example: Trust provides for discretionary distributions of income and principal for children. Ten years after trust established by individual, $60,000 principal distribution made to a child. One year after this distribution, individual applies for Medicaid. Medicaid will be denied. Distribution from trust subject to 60-month look-back. Under current law, the penalty will begin only after the individual is institutionalized and assets are reduced to $2,000.

Therefore, the period of ineligibility will be in excess of eight months commencing the date of application.

Many attorneys are drafting trusts with "trigger" provisions (i.e. income or principal distributed to or for the benefit of grantor until entry into a nursing home, then principal distributed to children.) That is, payment to the individual is "foreclosed" upon entry into the nursing home with the result that a 60-month look-back is activated. This technique will not work for the above reasons.


Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.
© August 2010, Post 115

Real Estate Planning Ideas For Married Couple Revisited

I recently had an experience where I accomplished the dual goals of benefiting the couple and ingratiating myself to the real estate community simultaneously.

Posts 11 and 13 are to be consulted.

Basically, if a couple lives in an apartment and have enough funds to purchase a house, the following steps should be taken:

1. After institutionalization, a residence should be purchased solely in the name of the community spouse.

2. The community spouse resource allowance would be the maximum so long as the home is purchased after the first day of the month after continuous institutionalization. Basically, the home should remain in the name of the community spouse until after the applicant receives Medicaid.

3. After Medicaid eligibility, the home is sold and the proceeds do not affect eligibility (Post 13 indicates community spouse not limited to community spouse resource allowance after date of eligibility of applicant).

4. By using such technique, you have basically preserved all of the individual’s funds and ingratiated yourself toward the real estate community since there will be the acquisition of a home, which, in the near future, would be sold.



Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.
© June 2009, Post 94

Sources of Information for Medicaid Rules

Unlike other areas of New Jersey law, which can be governed basically by cases or statute, the area of Medicaid eligibility is unique in this regard. For example, sources may include federal statutes, state statutes, state administrative regulations, Medicaid communications, verbal comments from state or local Medicaid workers or word-of-mouth.

The state has been remiss in both updating and implementing its Medicaid law. For example, the prior law known as OBRA ’93 was adopted by federal statute in 1993. Notwithstanding, it was not until May 16, 2001, that the state of New Jersey adopted administration regulations governing such law.

As required by state procedures, such law was proposed on June 5, 2000, requesting comments from the Bar and technical and substantive changes were issued on May 18, 2001. Notwithstanding, there were basically no substantial changes and the changes related to wording. This lack of attention to numerous comments provided by attorneys was ignored.

Many of the comments provided by attorneys were not only cogent, but were also correct.

Personally, Janice Chapin and I submitted seventeen comments, which we thought would be adopted and indicated obvious inconsistencies between the state law and the federal law. The two most salient discrepancies were and are New Jersey’s refusal to recognize the concept of spousal refusal and the insistence of New Jersey to treat disinheritance of a spouse in a nursing home as a transfer by the nursing home resident.

The Deficit Reduction Act, which was adopted in February, 2006, has not been implemented by regulations.

Since there are no governing regulations and minimal explanation by Medicaid communications, it is my opinion that the best sources for information are the Medicaid supervisors who attend periodic meetings during which the position on various issues are discussed. When the state will issue proposed regulations is unknown at this time. Therefore, in a way, we act at our peril in planning under the new law. I have attempted in my numerous posts to cut through this area of uncertainty and provide recommendations either based upon the prior law (which the new law has not changed) or my interpretation of the new law, based upon the federal statute and telephonic discussions with colleagues and knowledgeable Medicaid supervisors.


Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.
© June 2009, Post 91

Medicaid has Continually Interpreted that the State be the Remainderman of all Trusts

The administrative regulations (N.J.A.C. 10.71-4.10(f)) require that in order for a trust for the "sole benefit of" a spouse (subject to the c.s.r.a.), disabled child or disabled individual under the age of 65 to be exempt, the State must be the first remaining beneficiary. That is, the reimbursement requirement imposed by New Jersey applies to all "sole benefit of" trusts. Response to Comment 33 of the OBRA Regulations indicates so long as the Medicaid claim is satisfied, the trust can provide for other remainder beneficiaries.

This interpretation that the State be the remainderman is a requirement based upon a misunderstanding of the federal statute.

OBRA '93 requires that the state be reimbursed from trusts known as "(d)(4)(A)" trusts (trusts for disabled individuals under 65, Miller Trusts, pooled income trusts) - 42 U.S.C. 1396p(d)(4). These trusts are known as exempt trusts. Miller Trusts no longer exist. It is noted that the only "sole benefit of" trust referenced under this federal statute relates to a trust for a disabled individual under the age of 65. The exemption from the transfer rules for transfers for the "sole benefit of" a spouse or for the "sole benefit of" a disabled child is not based upon the aforementioned federal statute dealing with exempt trusts. The exemption for these transfers is based upon the federal statute which sets forth the list of exempt transfers - 42 U.S.C. 1396p(c)(2). While the federal statute requires that the remainderman of "(d) (4) (A)" exempt trusts be the State, there is obviously no such requirement in the transfer provisions and Medicaid is being more restrictive than the federal law.


Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.
© August 2010, Post 114

The State Reaffirms Medicaid Communication 10-02 in Medicaid Communication 10-06

In Medicaid Communication 10-02, the state denied reverse half-a-loaf as a viable planning technique based upon language in the Federal Statute 42 U.S.C. Section 1396p(c)(2)(C).
Medicaid Communication 10-06 reaffirms the position previously taken, that reverse half-a-loaf planning is not a viable planning opportunity, but grandfather's the planning technique for Medicaid applications prior to May 2010 for assets returned prior to May 26, 2010.
My position is that the state is still incorrect in their interpretation. My blog "State Incorrectly Interprets Transfer Penalty Period in Medicaid Communication 10-02" illustrates how Medicaid Communications 10-02 and 10-06 contradict comment 7 to the OBRA '93 regulations, which contains language explicitly allowing for give-backs.
It is thus my opinion that reverse half-a-loaf planning remains a justifiable planning technique, regardless of date, because of the language in the OBRA '93 comment and the less restrictive state comment which would control over the more restrictive federal statute.
Members of the Elder law bar are considering challenging the state's position based upon the above argument.

Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.
© June 2009, Post 113

Unpaid Nursing Home or Assisted Living Expenses

A situation that often arises is that an individual is dilatory in applying for or receiving Medicaid. Therefore, there could be an amount due to the nursing home.

The question arises as to the method of payment for such past due costs.

A significant administrative law decision takes the position that past due amounts for either nursing home or assisted living costs can be paid by pension and/or social security. The state had maintained that that could not be the case, but the matter has been submitted to the director for final decision.

Currently, the director has accepted the principle of utilizing the pension and/or social security for back payment of institutional costs, but only on a limited basis.

The director will limit the retroactive period to three months.


Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.
© July 2010, Post 112

Mental State - Difference Between Medical and Legal

I have recently had a case in which the hospital psychiatrist opined that a client was "incompetent" and, therefore, should not sign his will, power of attorney and living will.

My office staff and I discussed with the psychiatrist and his assistants the fact that "competence" has a different meaning for legal and medical purposes.

The doctor felt that the individual was not competent according to his normal medical standards. We explained to the psychiatrist and his staff that "competence" has a different meaning for legal purposes.

For example, with respect to a power of attorney, we explained that it is sufficient for the individual to understand that he is allowing the holder of the power of attorney (the agent) the authority to handle his assets. Similarly, with respect to the living will, it is sufficient for the individual to understand that he is granting the authority for another to make the specified decision with respect to extraordinary care. A more onerous standard governs testamentary capacity since an individual must understand the nature of his assets, the objects of his bounty and how the assets are disposed of under his will.

After discussion with the medical staff, they agreed that the legal standard should be employed. In fact, we requested and obtained a patient representative and a nurse to witness the will. The will was successfully executed without any concern for challenge.



Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.

© July 2010, Post 111

Retain Life Estate As a Medicaid Planning Technique

Retain Life Estate as a Medicaid Planning Technique (Pros and Cons)

In an ICLE seminar material entitled, Hot Topics in Medicaid Planning, in the chapter entitled “Real Property,” I discussed the possibility of the potential applicant transferring a home to a child and retaining a life estate.

Some of the salient features of such a transaction are as follows:

1. There is a gift of the remainder interest, and such gift becomes subject to the transfer rules of the Deficit Reduction Act. However, if such transaction occurs more than 60 months prior to the date of application, the beneficial factors listed below apply.

2. No value is assigned to the retained interest for resource eligibility purposes. Therefore, a person applying for Medicaid with a retained life estate would not be treated as having a resource for that interest.

3. The basis in the property is “stepped-up” upon mother’s death (Sections 1014 and 2036 of the Internal Revenue Code).

However advantageous such technique may appear, it is important to consider some major stumbling blocks. As indicated in New Jersey Practice, Celentano, ¶4.8, the author points out various financial obligations of the life tenant (i.e. the Medicaid recipient in our hypothetical) which include the duty to keep the property in as good repair as when the estate began.

4. Ordinarily the life tenant is required to pay taxes, make repairs and pay interest on a mortgage. Possibly the life tenant may be required to provide security to protect the interest of the remainderman.

Therefore, a life tenant-Medicaid recipient will have financial obligations. However, if such individual is a Medicaid recipient, the life tenant will not have any funds to pay such obligations since the Medicaid reimbursement rate is to be reduced by social security and pension monies. Notwithstanding, Medicaid has recently adopted the position that pension and social security can be used to pay the life tenant’s obligations.


Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.
© May 2009, Post 86

Special Planning Problems for Elderly Person (Single)

The posts have discussed in detail methods of protecting the elderly. However, often a parent will have issues with a child. The problems addressed in this post are not those of a disabled child, but deal more with the typical problem of a will for a child-beneficiary with creditor issues or a child-beneficiary who may be unable to handle money.

This post will discuss one approach for the will of the elderly parent who is survived by a creditor-prone child with other beneficiaries such as siblings or issue. For purposes of this article, I will assume that the child has both siblings and/or issue.

Numerous possibilities come to mind when providing for a child. Clearly, if the funds are devised to the child outright, the funds upon receipt will be subject to claims of creditors. The method by which the elderly individual should provide for such child is clearly by trust under the parent’s will (testamentary trust).

The trust that provides maximum protection would give the trustee pure discretion to distribute the income and/or principal. If the trust had language allowing distributions for the child’s support, etc., such distribution might be subject to a creditor’s claims. However, if the trustee could distribute income and/or principal at the trustee’s discretion, that would be a better approach and render the child’s inheritance less available to creditors.

After considering this problem in great detail and discussing the matter with bankruptcy lawyers, I have concluded that I would desire a trust that accomplishes the following goals:

1. Distributions can be made to the child when needed.

2. Render the trust as immune to creditors as possible.

3. Be available to the child if his or her problems have been resolved.

The trust that I recommend given the above issues would allow the trustee to distribute income or principal to or amongst the child and his issue or the child and his siblings or both.

A creditor seeking to attach the child’s interest would be faced with the argument that a trust which is purely discretionary for the child and other relatives is not available to creditors since there is no interest in a trust of the child alone since the trust is discretionary for the child and others.

Perhaps the most important aspect of the trust is its discretionary nature, which would allow the trustee to terminate the trust and distribute the principal to the child if the situation changes and the creditor problems are deemed to no longer exist by the trustee.

The key to such planning is that there must be a trustee designation (and presumably contingent designations) that provides confidence that the intent of the will is carried out.

Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.
© May 2009, Post 85

Changes That Affect Planning For Medicaid

The various posts have addressed the fact that there are annual changes that affect the projection of the date of Medicaid and Medicaid planning. These changes must be kept in mind as one projects the probable date for Medicaid (see Post 7, “Rules of Medicaid Eligibility”). The changes discussed include the following:

1. The community spouse resource allowance maximum and minimum, which changes the first of every year effective January 1. Currently, the maximum is $109,560 and the minimum is $21,912 (see Post 50 for further discussion of the rules governing such changes).

2. Also, the penalty rate for transfers changes annually on the first of any given year retroactive back to November 1 of the prior year (see Post 51 for this topic in greater detail).

3. The income cap, which currently is $2,022, is particularly relevant with respect to Medicaid waiver programs which also change annually.

4. Although not previously discussed, but particularly significant, is the fact that the costs of nursing home care also change annually. Therefore, if you are anticipating eligibility in the next calendar year, this change or anticipated change must be kept in mind.

5. The amount the potential applicant receives for social security increases each year in a percentage equal to the COLA.

6. The pension that the potential applicant receives may or may not increase annually and this should also be considered.

7. The pension and social security payments and their effect on post-eligibility Medigap insurance are discussed extensively in Post 1. That is, planning not only is to be considered through the date of eligibility, but with respect to several issues, including Medigap insurance, is to continue after eligibility.

8. Of course, post-eligibility planning must consider the fact that a Medicaid recipient would lose eligibility if resources exceed $2,000 on the first of any given month. Post-eligibility planning also is stressed in Post 13 which discusses the fact that the community spouse is not limited by the community spouse resource allowance after the date of eligibility of applicant.

Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.

© May 2009, Post 84

Real Estate Expenses As Part Of The Spenddown

Real Estate Expenses As Part Of The Spenddown

In Post 11, the basic rule that real estate owned by a married couple is an excludable resource.

At various points in the posts presented, we have indicated that reasonable expenses relating to the home can also be treated as part of the spenddown.

However, Medicaid insists that any monies expended on the home be needed and that verification be provided.

For example, in reviewing my files I noticed a case with extraordinary home improvement expenses, which were necessary and allowed as part of the spenddown by the County Board. The expenses allowed and the verification provided were as follows:

1. $12,500 air conditioner (doctor’s letter about wife’s breathing problems).

2. $ 4,900 boiler (letter provided indicating deterioration of current boiler and necessity for a new boiler).

3. $13,000 landscaping and drainage (pictures submitted of flooded property).

4. $ 2,900 electrical upgrade (letter provided and pictures shown regarding condition of current electrical setup).

5. $ 2,007 replacing shed damage (pictures shown).

Although Post 53 stresses that allowable expenditures are limited by the concept of reasonableness, verification of an extraordinary amount of home expenditures was allowed in this particular case.

The point of this example is to show that necessity is the test for expenditures and that verification can often justify unanticipated expenditures.

Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.

© May 2009, Post 83

Method For Increasing Community Spouse Resource allowance

Method for Increasing the Community Spouse Resource Allowance

The community spouse resource allowance, which is the amount of resources that the community spouse may have at the time of eligibility of the applicant has been given a broader interpretation by the county boards and provides an opportunity for protecting a greater amount. For example, we have defined the community spouse resource allowance as being determined at the first moment of the first month of continuous institutionalization at a hospital or a long-term care facility (see particularly Post 8).

However, Medicaid is allowing this “snapshot” to be taken prior to the above dates if the individual is at home and is paying for his or her care to a homecare provider of such services like an aide or a licensed practical nurse. Therefore, assume that a person enters a nursing home with spousal assets of $80,000. The community spouse resource allowance would be $40,000. However, further suppose the individual has been cared for at home for the last two years and at the first day of the first month of homecare assets of the husband and wife total $300,000. The individual then enters a nursing home with the above-referenced $80,000. The community spouse resource allowance based upon resources of $300,000 at the first day of the first month of homecare, would be $109,560. Therefore, the person would immediately qualify for Medicaid and, have expended a substantial portion of the protected amount.

Awareness of this extended interpretation would allow the individual to decide to go into the nursing home at an earlier date. For example, if the individual entered the nursing home when the applicant had $2,000 and the community spouse had $109,560, the community spouse resource allowance having been determined at a much earlier date at $109,560, would allow this individual to now immediately qualify for Medicaid.

Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.

© May 2009, Post 82

Transfer to New Jersey of Individual Receiving New York Medicaid

A common situation involves a Medicaid recipient in New York who desires to relocate to a nursing home in New Jersey. The seminal question is whether such Medicaid eligibility is transferrable. The general answer is no and a new application for Medicaid must be made in New Jersey under the applicable rules.

The rules governing Medicaid eligibility are substantially different in New York than in New Jersey. For example, Medicaid in New York will cover 24-hour home care. Although our home care benefits have increased in New Jersey, they are not equivalent to New York.

I have spoken to supervisory people in Morris County and it has been observed that there is one exception. Lincoln Park Nursing Home in Lincoln Park will honor New York Medicaid eligibility.

One final issue relating to this topic is the constitutional question as to the point in time that an individual moving to New Jersey can become eligible for governmental benefits. As Janice Chapin, Esq. pointed out in our Institute for Continuing Legal Education materials entitled, Hot Topics in Medicaid Planning, since 1969 the rule has been that a state cannot impose a duration of residency on public benefits. The Supreme Court of the United States in Shapiro v. Thompson, 394 U.S. 618 (1969) ruled that states cannot deny welfare benefits to those newly arrived from other states. That is, the moment that an individual enters that State of New Jersey, such individual becomes eligible for benefits (subject to meeting the requirements).

Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.

© May 2009, Post 81

State Incorrectly Interprets Transfer Penalty Period in Medicaid Communication No. 10-02

On May 26, 2010 the State issued Medicaid Communication No. 10-02. In denying give-backs (the basis of reverse half-a-loaf planning), Medicaid authorities have relied on the underlined language, "all assets transferred for less than fair market value have been returned to the individual", of the federal statute (42 U.S.C. Section 1396p(c)(2)(C)).

I cited to the Medicaid authorities Comment 7 to the OBRA '93 regulations and the State's Response. The language expressly allows for give-backs.

It was then called to my attention that under the Supremacy Clause, all assets have to be returned, when the federal statute is read in conjunction with the aforementioned Comment and Response to the OBRA '93 regulations.

It is my respectful opinion that the State is incorrect on this point and that federal pre-emption is not applicable. My reasoning is as follows:

(1) 42 U.S.C. Section 1396p(c)(2)(C) does appear to contradict the above and control under the doctrine of federal pre-emption;

(2) However, the federal statute requiring a transfer of all assets was also in effect at the time that the aforementioned Comment and Response were made (Response being the State's interpretation);

(3) Therefore, since the State law allowing give-backs is less restrictive than the federal statute, give-backs and reverse half-a-loaf planning are not impaired.


Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.

© June 2010, Post # 110

Significant Change in State’s Position on Caretaker Agreements

At a meeting of Medicaid supervisors last week, a major change in the Medicaid law was adopted:


Payments by applicant for care and services provided by a child were initially discussed in Post 17 under the theory that such payments by an applicant are reasonable. Medicaid allowed payments by a parent to a child in the amount of approximately $13,000 in a case that I submitted. Justification for payment for such services was provided.

Subsequently, the State took a restrictive position and limited the payments pursuant to a Caretaker Agreement to the amount received by a nurse’s aide, which generally approximates to $10 per hour.

The State now has reconsidered its position and will revert to its prior stance on Caretaker Agreements that the amount reimbursed to a child can exceed its prior limitation and allow payments by the applicant to the child that are “reasonable” with respect to such services.

This is a major change in position and allows significant savings if the payments to the child are justifiable.

Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.


© May 2010, Post 80(2)

Unique Solution to Transfer by Applicant Prior to Representation

Transfers by an applicant after the Deficit Reduction Act present unique problems. (See Post 15). Various posts have discussed partial or complete solutions to such problems such as use of the monies for the applicant or return of the monies. However, any monies returned become resources of the applicant.

I was recently presented with a problem which again brought to my attention the significance of a caregiver’s agreement.

Assume the following facts:

1. Transfers by an applicant without the advice of counsel.
2. Intent to qualify for Medicaid in the near future.

There was a pre-existing care agreement and the applicant had substantial liabilities. I resolved this problem in the following manner:

1. The child returns the money to the potential applicant to undo the penalty.
2. Parent, depending upon the situation, can use the monies to pay debts, make payments pursuant to a pre-existing care agreement or spenddown either prior to entrance to a nursing home or after admission.

Pre-existing transfers require creativity for solutions. For example, in another matter, a sibling of the donee loaned monies to the donee who reimbursed the applicant who, in this case, had substantial debts and the monies reimbursed were immediately used for the spenddown. The children arranged between themselves for repayment of the loan.

Another common situation would be prior transfers and the parent having a substantial liability due to a reverse mortgage. Similarly, return of the monies would undo the penalty and the monies could be spent down immediately to pay the debt.

This discussion again stresses the point of reviewing all the facts and see if there is a possible solution to resolve what initially appears to be an unresolveable problem (see also Post 18).

Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.

© May 2009, Post 80

Dependent Child Revisited – Meaning of Dependency

Suppose a child is living in a potential applicant’s home because such child cannot live alone due to physical limitations. The child would clearly render the home an excludable resource as set forth in Program Instruction No. 85-8-9 (see Post 14).

If the parents were to go into a nursing home, the home would be protected under the aforementioned program instruction and the dependent relationship.

Since the child is also disabled, any assets transferred to such child would be free from transfer penalty (see Post 42).

The thought might occur that the transfer of funds to the child could hinder the dependent relationship and, therefore, render the house an includable resource. However, financial dependency is only one of the situations described in the program instruction. Other forms set forth as examples include medical, custodial or any other type of dependent relationship. Therefore, the broad definition of “dependent relationship” would allow immediate Medicaid as both the house and funds transferred are protected.

This post indicates the breadth and meaning of dependent relationship and points out that even financial independence would not ruin the excludable nature of the home.

Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.

© May 2009, Post 79

Spousal Refusal

The theme of many of these postings and programs that Janice Chapin, Esq. of Central Jersey Legal Services and I have conducted for the Institute of Continuing Legal Education (“ICLE”) has been the lack of attention by Medicaid to federal law (i.e. federal pre-emption). A major area for this contention relates to the concept of spousal refusal. That is, if a community spouse refuses to contribute his or her funds to the nursing home costs of an applicant, under what circumstances should Medicaid still be granted? The federal law basically states that Medicaid will not be denied if a community spouse refuses to contribute if the State has the right to sue the spouse for the costs that should be contributed.

The State of New Jersey again does not follow the federal law and has a list of onerous requirements for spousal refusal to be given effect (i.e. Medicaid granted despite the refusal). There are forms to be filled out and questions to be answered. The major requirements for spousal refusal (and the granting of Medicaid in New Jersey) are (1) a lengthy separation of at least 20 years, (2) non-cooperation of the community spouse, (3) at least three attempts to communicate with the community spouse.

The State then evaluates whether Medicaid should be granted.

It is a rare case in which the State will honor spousal refusal. Therefore, if spousal refusal is not granted, and the spouse has in excess of the resource requirement (currently $109,560), Medicaid will be denied.

Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.

© May 2009, Post 78

Nursing Home Procedures

In addition to the Medicaid eligibility requirements, it is not unusual for the procedures of the nursing home to present problems or be a stumbling block to Medicaid eligibility.

For example, the nursing home application should be read carefully by the family members submitting the application. I have seen an application which gave the nursing home the unilateral right to terminate the agreement. Although this is extreme, the signer of the application (it’s not the person going into the nursing home) should sign under a power of attorney with the words “signing in a representative capacity and not individually.” Many nursing homes have a time period for which you must pay privately. As mentioned in prior posts, this is illegal both federally and for the state, but it is a policy which is enforced by the nursing home.

Also, each nursing home has its policy on the amount of deposit requested. The significance of the deposit is that while there is an unused deposit, the applicant cannot receive Medicaid. This point should be kept in mind in the eligibility process.

Nursing home bills should be reviewed monthly. A monthly bill generally invoices for the daily costs in advance of the month and for personal items for the prior month. Therefore, bills should be reviewed carefully in the spenddown process.

As I have discussed, an additional requirement to eligibility other than the financial requirement is an examination by a county nurse which must be undertaken (PAS).

On many occasions, the nursing home will submit the Medicaid application without the assistance of the family or counsel. I have seen situations for which the nursing home has submitted an application without informing the family. The application was cursory and the family was denied timely eligibility.

Finally, it is extremely important to communicate with the financial director of the nursing home so that you are not viewed as adversaries. Having a prior relationship with the nursing home is an asset since it will assist in the admission of a person if the funds available are not substantial.


Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.

© May 2009, Post 77

Loss of Eligibility Due to Unnecessary Transfers

As mentioned in prior posts, there is a misconception that the transfer of an excludable resource results in an excludable transfer. This is not the case. For example, if a potential applicant transfers his residence to a dependent child residing in the home, such a transfer would give rise to a penalty. The proper approach would be to stand pat and not make the transfer as Post 14 indicates that such property is excludable.

Several posts have discussed the concept of a child providing care for a parent two years prior to institutionalization when such care allows the applicant to remain at home. The transfer of property to such child is treated as exempt if deemed so by the County Board. (See Posts 6, 23, 34, 37 and 40). The posts stress that the transfer should not be made until application before the Board as the issue of whether one qualifies as a protected transferee is subjective.

Another type of excludable property is joint property held with another (say a sibling). Such property is treated as “inaccessible,” and, therefore, excludable. However, transfer of such property would give rise to a penalty.

With respect to the above issues, reference is made to Post 58 which deals with the transfer of an excludable resource.

If presented with such a problem (transfer of exempt property giving rise to a penalty), communication should be made with the County Board with a request that the property be re-transferred. Technically, once such transfer is made, it would appear that the penalty could not be cured. However, I have been successful on several occasions by requesting that the property be transferred back into its original state without a penalty imposed. The County Boards have been sympathetic to such an approach.

Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.

© April 2009, Post 76

Admission to Nursing Homes

Generally, admission to a nursing home is preceded by a hospital stay. A family member should immediately request a PAS at the hospital (examination by county nurse) which is a prerequisite to Medicaid eligibility in addition to the financial requirements.

If the potential applicant is in the hospital for more than three days, the person may qualify for Medicare to pay the nursing home stay for a limited period of time. If the individual requires physical rehab or skilled nursing home care, Medicare will pay for the first 20 days in full and for the following 80 days except for a co-pay, which should be covered by the Medigap insurance. Keep in mind that Medicare will pay only if there is the required progress for the individual at the nursing home.

One of the issues for long-term admission to a nursing home is that many nursing homes require a private pay guarantee for a certain number of months. This is illegal for both state and federal purposes, but these rules are not enforced.

After Medicaid coverage ceases, if the individual seeks admission to the nursing home a method of payment must be shown. Therefore, if the person has minimal funds, the Medicaid process should have already commenced.

At such time as long-term care is sought, the family will be presented with an application and other documents. It is recommended that these be reviewed by an attorney.

If the nursing home is of the opinion that there may not be a method of payment (i.e. Medicaid hasn’t been granted or insufficient resources), admission to the nursing home may not be granted.

Of course, family members may be willing to private pay until such time as Medicaid is granted.

If an attorney is assisting the family in the application process, the attorney should feel confident that the family is willing to cooperate and has the sufficient documents required by the County Board.

The application is made at the county where the nursing home is located. However, if application is made from the individual’s residence, the application is to be submitted to the county of residence.


Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.

© April 2009, Post 75

Key Points to Remember in the Computation of the Community Spouse Resource Allowance

The community spouse resource allowance has been discussed in Posts 8, 13, 26, 30, 50 and 60.

Experience has borne the fact that actual computation of the community spouse resource allowance often involves issues that raise some thought.

The following are some points to remember in computing the protected amount:

1. The community spouse resource allowance is only to consider resources that are countable for Medicaid purposes. For example, the primary residence is an excludable resource and is not to be treated as part of the computations.

2. Bank accounts generally provide the balance in the middle of the month. Request the client to get a letter from the bank as of the appropriate date, the first moment of the first day of the month of institutionalization, in reality, is the close of business on the prior day.

3. A certificate of deposit that is due in several weeks arguably is hard to value. That is, it has been my experience that if a family requests the funds without any penalty, that the bank will comply.

4. If there are assets subject to a penalty for withdrawal such as an IRA or an annuity, the withdrawal penalty is not to be considered. With respect to an IRA, it is suggested that the stocks be sold within the IRA (no tax at that point) so that after distribution and income tax, there is not an additional tax due to the necessity to liquidate appreciating assets.

5. Joint property (such as real estate) is to be valued at one-half the fair market value of the real estate. This is different than the treatment for death tax purposes since a fractional interest in real estate is often discounted for fractional interests.

As the above indicates, numerous technical issues arise throughout the Medicaid process, but for purposes of computing the community spouse resource allowance they must be addressed immediately so that eligibility can be projected.


Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.

© April 2009, Post 74

Importance of Reviewing Checking Records as the Date of Eligibility Approaches

Post 4 discusses significance of payment of debts and expenses. This post is to serve as a clarification of some of the points made.

1. The general rule, of course, is that resource eligibility is determined as of the first moment of the first day of each month – N.J.A.C. 10:71-4.1(e). For example, if June eligibility is anticipated, the amount reflected in the account on June 1 is not the proper amount. That is, you are to look to the first moment of the first day of each month. The June 1 balance is not the first moment. In actuality, the balance as of the close of business on May 31 is the proper amount. Do not fall into this trap.

2. Another key rule is that subsequent changes after eligibility during the month do not effect the original determination of eligibility – N.J.A.C. 10:71-4.1(e). This is discussed in the context that the funds are used for appropriate purposes prior to the beginning of the first moment of the first day of the subsequent month. Post 4 discusses possible approaches to reduction of the amount. However, it is important to use the funds for an excludable resource such as a prepaid revocable funeral trust or valid expenses of the home if the individual happens to be married. Very often in this circumstance I have seen clients use the funds for purposes that may be subject to question such as checks drawn to the child or checks drawn to cash. It is important to be conservative in this regard.

3. Another rule set forth is that a check drawn on the account reduces the value of the account whether or not negotiated – N.J.A.C. 10:71-4.1(e)2. It is extremely important to be aware that the records will not show the account being reduced by the first of the month since the check was not negotiated. It has been my practice to keep a copy of the check and submit it to Medicaid for the subsequent month in order to establish eligibility. If such a resource is anticipated such as an income tax refund for a medical reimbursement, it would make sense in advance as to plan the use of such monies. For example, meet with the funeral director in advance and make preliminary arrangements. As indicated in prior posts, expenses relating to the joint home are excludable. However, such expenses should be justified and are subject to the concept of reasonableness.


Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.

© April 2009, Post 73

Transfers Made By Potential Applicant After February, 2006

Post 18 discusses some of the steps to take when presented with a situation for which transfers have already occurred. The purpose of this post is to expand some of the concepts presented and provide some new curative ideas. I am very often presented with a situation which indicates that a potential applicant has made numerous transfers prior to retaining me. All transfers during the look-back period are aggregated and are deemed to have been made at the time of application (the time a person would be otherwise eligible for Medicaid but for the transfers). The transfer period commences at that time and the various issues presented by such rule are set forth in Post 15. Perhaps the most onerous rule is that the nursing home does not receive Medicaid nor payments from the individual who has exhausted his or her assets.

1. Perhaps, the first ameliorative approach should be to review the exemptions from the transfer rules. The major exemptions are the transfer of home to designated individuals, transfer to a disabled child, transfer for purpose other than Medicaid and assets transferred used for the benefit of the Medicaid applicant.

2. Another approach would be to wait and hope that the potential applicant does not need nursing home care for 60 months.

3. Another approach would be to evaluate the penalty (divide aggregated transfers by applicable penalty rate at the time of application).

4. The monies could be given back to the potential applicant if the situation is propitious. The ideal situation would be if the applicant had excludable resources for which the funds could be used. That is, if the potential applicant were married and the home needed extensive repairs, the monies could be protected. Similarly, monies could be expended on prepaid funeral funds.

This article should be read in conjunction with Post 18 to give a complete picture of the problem and the issues.




Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.

© April 2009, Post 72

Caretaker Agreement Not Technically Required

Caretaker agreements have been discussed in Posts 17 and 52. Basically, the regulations provide that if an applicant transfers funds to a child or relative if such transfer is pursuant to a pre-existing agreement, the presumption of a transfer is rebutted. However, careful examination of the language indicates that such agreement may not be necessary. The regulations state that a transfer of assets by the applicant to a friend or relative “may be rebutted by the presentation of credible documentary evidence preexisting the delivery of the care or services.”

The word “may” is to be stressed. My feeling is that if the fact situation clearly indicates that a transfer of monies compensating a friend or relative for past services is obvious, a pre-existing agreement should not be provided.

For example, if the applicant during the look-back period has no funds and needs medicine to keep alive, monies expended by a friend on such medicine with the check indicating that it is a loan should not require a caretaker agreement. Similarly, if a dependent relative (see Post 14) resides in the future applicant’s home, a portion of any expenditures by the dependent relative should be treated as reimbursable.

Although a caretaker agreement should be drafted, the necessity for such may be lessened, particularly if the parties are aware that the applicant will be receiving an inheritance. That is, the child or friend made expenditures on behalf of the applicant with the anticipation of a reimbursement from the applicant.

The above ideas are merely suggestions as to arguments that can be made if a caretaker agreement has been neglected. Obviously, the preparation of such agreement should be a standard course of conduct.


Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.

© April 2009, Post 71

The Loss of Medicaid Eligibility

The rules of Medicaid eligibility have been discussed in Post 7 and throughout the various postings provided. That is, the individual must have less than $2,000 (or $4,000 if assets are over the income cap of $2,022).

However, after eligibility, the Medicaid recipient (or family) must carefully monitor the individual’s resources to ensure continuing eligibility. That is, for the recipient, the first day of each month must show resources less than $2,000. Situations to be considered include, but are not limited to, the following:

1. The cash value of insurance with a face value in excess of $1,500 is a resource. I recently submitted an application for which the individual had such a policy, but still qualified for Medicaid since the cash value was so minimal and the bank account did not put total resources over $2,000. However, any remaining cash value not surrendered is to be considered in total resources. Therefore, surrendering the policy make sense even if the cash value doesn’t immediately disqualify you from Medicaid if other resources are considered.

2. Medicaid allocates $35.00 a month to a Medicaid recipient. This number can build up over time and has to be reviewed periodically.

3. Presumably, the recipient maintains a bank account and that is also a resource. Avoiding any problems with pension and/or social security is discussed in Post 1.

4. Monies inherited will eventually cause disqualification. The effect of inheritance by the Medicaid recipient is discussed in Post 28.

These types of issues should not be factors with respect to the community spouse resource allowance. As indicated by Post 13, the community spouse is not limited to $109,560 (for the year 2009) after the applicant receives Medicaid. This is to be distinguished from the requirement for the applicant where the resource allowance must be kept at $2,000 or less on the first day of each month throughout eligibility. Two typical examples of the community spouse rule have been presented in the materials. For example, in the real estate planning ideas presented in Post 11, if the primary residence is in the name of the community spouse, the closing on the sale of property in the sole name of the community spouse should be after the date of the applicant’s eligibility. Similarly, if the community spouse is the beneficiary of an estate, the mere fact of being a beneficiary does not cause the inheritance to be a resource as such is treated as an “inaccessible resource.” However, if the monies are distributed before the date of applicant’s eligibility, the inheritance will be treated as part of the “spousal pot,” and, therefore, the applicant will not qualify.


Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.

© April 2009, Post 70

Additional Real Estate Planning Idea for Married Couple

In Post 11, it was discussed that if a couple are renting, the purchase of a home by the community spouse would be a protected asset and expedite Medicaid eligibility. I believe this is a significant planning technique and this post discusses the approach in greater detail. The key rule to remember is that the home constitutes exempt property if resided in by the applicant, the community spouse or both. This article addresses ownership of home by the community spouse. Generally, if a couple is renting , the new home should be purchased solely in the name of the community spouse and resided in at least until after the husband qualifies for Medicaid. That is, after determination of eligibility for Medicaid, the resources of the community spouse are no longer deemed available to the nursing home resident. However, if the home were sold prior to Medicaid, the monies would be part of the spousal “pot” and Medicaid eligibility would be denied or lost.

The key to this planning technique is also to protect the community spouse resource allowance.

The community spouse resource allowance is determined “as of” the date of institutionalization which is the date of continuous placement in a hospital or nursing home. The key to maximizing resources is that, if institutionalization is imminent, purchase the home after institutionalization so as to maximize asset protection. That is, prior to institutionalization we are dealing with cash.

For example, if there is $300,000 in resources at the date of the “snapshot," the community spouse resource allowance would be $109,560. The balance of the monies could be used by the community spouse to purchase a home. That is, the monies not allocated to community spouse resource allowance need not be allocated to nursing home costs. It is a common misconception that resources that are not part of the protected amount must be expended on nursing home costs. There is no such requirement.

Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.

© April 2009, Post 69

Methods of Payment of Nursing Home Costs

There are several methods by which a nursing home can be reimbursed for the stay of an individual, some of which are temporary and some of which are permanent. However, it is necessary to keep all of these in mind in projecting the date of eligibility.

Firstly, other than the various financial issues in obtaining a Medicaid eligibility letter, a necessary element of Medicaid eligibility is to obtain a PAS for the applicant. This is an examination by the county nurse which will be given almost immediately if a potential applicant is in a hospital. Otherwise, the family is at the mercy of the schedule of the nurses who often cover several counties. Financial eligibility without a PAS will result in eligibility being delayed until the PAS is obtained.

The methods of payment of a nursing home include Medicare (for a limited period of time), long-term care insurance and private pay.

There is a misconception that Medicare will pay for a long-term institutionalization. This is not the case. Medicare will pay for a limited stay at the nursing home if the following requirements have been met:

1. The individual has resided at a hospital for at least three days.

2. Medicare will make full payment for 20 days if an individual requires skilled nursing or rehabilitation and payment is made so long as sufficient progress is made by the applicant. Medicare will also pay for some or all of the next 80 days with a co-pay that is often covered by the individual’s Medigap insurance. The family must carefully monitor the progress of the potential applicant and the thinking of the nursing home. The nursing home often gives limited notice as to the time Medicare payment ceases. At this time, the family must make the decision as to whether the individual remains in the nursing home or returns home.

If an individual remains in a nursing home, the rules of Medicaid discussed in the various Medicaid postings become applicable.

Many nursing homes require private pay for a guaranteed period of time. Although this requirement is illegal, it is part of the Medicaid game and the family should make initial inquiry as to the policy of any given nursing home.

Also, upon the expiration of Medicare coverage, the family will be presented with a nursing home application, including the key document which is the agreement. Consulting an attorney regarding the terms of the agreement is advisable.

If an individual anticipates purchasing long-term care insurance, an expert should be consulted. The permutations of the type of policy are virtually infinite. Some of the areas that are to be addressed include care at home, increase with the C.P.I., time period for coverage (that is, set number of years or lifetime), waiting period (period before payments commence), etc. I intend to have an expert write an article for this blog discussing long-term insurance in detail.

There are basically two reasons why an individual would purchase long-term care insurance. Usually, the insurance is purchased because the individual or individuals are aware of the intricacies of Medicaid and desire to have monies to avoid such process. However, such insurance can be purchased for estate planning purposes. That is, a wealthy individual might not want a diminution of assets caused by nursing home costs and the insurance would avoid or at least ameliorate that possibility.

Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.

© April 2009, Post 68

The Importance of a Carefully Prepared Transmittal Letter

Accompanying any Medicaid application should be a transmittal letter which serves as a map to the County Board of eligibility. The purpose of the transmittal letter is to avoid delay in time and confusion regarding eligibility, purposes of transfers and matters such as accounts closed out within the relevant look-back period.

In my transmittal letter, I initially set forth the documents listed by the respective County Boards. I also enclose any information or documentation you need for the case such as Caretaker Agreement (agreement pursuant to which applicant compensates child for previous services, see Post 17).

The second portion of my transmittal letter sets forth the monthly statements of any current accounts for the applicable time period. Currently, County Boards are looking at statements from the date of eligibility back to February 2006, which is the month of adoption of the Deficit Reduction Act. Of course, documentation must eventually be supplied for the anticipated eligibility date. Generally, an application is submitted prior to the eligibility date. However, if an individual is eligible prior to the submission of the application, eligibility can be retroactive for three months.

I then set forth in a separate folder the current assets of the applicant.

It is particularly important to show closed out accounts back to February 2006. Although I title such portion of my transmittal letter “closed out accounts,” the meaning is broader. Firstly, any closed out account should trace the proceeds of such account (i.e. another account of the applicant, an expenditure or a gift). Other closed out assets and the disposition of such assets during the look-back period would include, but not be limited to, IRA’s, sales of stock, payments pursuant to a caretaker agreement, sale of a residence, surrender of life insurance, monies expended on an excludable resource such as a home, etc.

Of course, if there is a community spouse, I enclose a separate folder showing the computation of the community spouse resource allowance. This separate folder would include all includable resources as of the first day of the first month of institutionalization. The period of institutionalization would include both the nursing home and a prior stay in a hospital if relevant. With respect to the community spouse resource allowance, see Post 8.

The initial transmittal letter should include sufficient information so that all that is necessary to provide at the date of eligibility, are subsequent statements of the applicant and/or spouse through the time of eligibility.

There are several posts which are relevant to the final time period between submission and the eligibility date. If submitting a transmittal letter, it is suggested that these posts be reviewed:

1. Post 4 – Significance of Payment of Debts and Expenses.
2. Post 5 – Accelerating the Date of Eligibility.
3. Post 7 - Rules of Medicaid Eligibility.
4. Post 8 - Community Spouse Resource Allowance.
5. Post 10 - Significance of the 90-Day Rule.
6. Post 16 - Qualifying for Medicaid.
7. Post 20 - Importance of Liquidating Assets in the Medicaid Planning Process.
8. Post 25 - Date of Application Could Be Fatal.
9. Post 31 - The Problem of Recurrent Disqualification.
10. Post 33 - The Problem of the Working Spouse.

In addition to supplementing the initial transmittal letter, projections should continually be made of the anticipated date of eligibility. With respect to this issue, pension and social security of a spouse or both spouses should be reviewed as should nursing home bills which delineate not only the cost of the nursing home (invoice generally covers subsequent month), but also expenditures such as medicines which a nursing home generally invoices for the prior month.

Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.

© April 2009, Post 67