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
Monday, September 27, 2010
Wednesday, September 22, 2010
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
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
Thursday, September 16, 2010
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
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
Tuesday, September 14, 2010
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
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
Wednesday, September 8, 2010
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
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
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