Millions Could Lose Medicaid When Pandemic is Declared Over- How to Protect Your Coverage?

While the decline of COVID-19 cases is a relieving sign of progress, the end of the pandemic could mean the end of Medicaid coverage for millions. Federal law prevented states from stopping Medicaid benefits until the pandemic is declared over. As we near the end of the health emergency, it is vital you understand how to protect your coverage.

Congress passed a law providing that the state could not terminate the benefits of Medicaid recipients who were enrolled as of March 18, 2020. It states that the coverage must continue through the end of the month that the Secretary declares the pandemic has ended. Although the public health emergency has not officially ended yet, the Biden administration intends it to some time in 2022.

Protecting Medicaid Coverage After the Pandemic

The impact this could have on your Medicaid is not fully defined, but it is estimated that about 15-million non-elderly people could lose their coverage. Further, it is important you understand your options for maintaining your long-term care. Planning in advance is required for protecting your future health needs. Below are four different strategies you could adopt to help keep your Medicaid coverage.

1. Asset Protection and Income Trusts

Asset protection trusts allow your wealth to be distributed to the same people when you die so your loved ones don’t have to pay capital gains tax on the amount your assets have increased in value during your lifetime. Assets transferred to an asset protection trust don’t belong to you. Be sure to note that transfers to trusts that occur within five years of when you need the Medicaid will be subject to the look-back period, so you must plan well in advance of when you need the care.

When applying for Medicaid, the income limits are strict. If your income surpasses the qualification threshold, it must be adjusted accordingly. A method to do this is establishing a qualified income or pooled income trust. A qualified income trust is irrevocable and can be established to hold the amount of income that exceeds your Medicaid limits. In some states, you can spend down the amount of income that is excessive so you can meet eligibility requirements, while in others you cannot. A pooled income trust is another type of irrevocable trust that holds excess income, designed for people who are disabled. Moreover, you can decide which of these types of trusts is the best fit for your individual needs.

2. Promissory Notes and Private Annuities

Make sure you are not giving away your assets and money during the look-back period, as you will be penalized. A promissory note or private annuity allows you to create a cash flow from your other assets so you can use it to pay for your nursing home care during a shorter penalty period.

3. Caregiver Agreement

A caregiver agreement may provide access to services that otherwise would not be included in Medicaid. Under this, a trusted family member may leave his or her job to care for the elderly individual. Services may be paid for in advance to reduce the countable income for Medicaid eligibility. For a caregiver agreement to be accepted by Medicaid, you must do the following:

  • Define hours and services in the contract
  • Maintain a daily log of hours and services
  • Pay to Medicaid the unearned amounts that remain upon your death
  • Calculate lump sum payment using market rates for services and reasonable life expectancy

4. Spousal Transfers

Transfers of assets between spouses are both permitted under the law and not subject to the look-back period, making it an appealing means of healthcare coverage protection. This makes the ill spouse eligible for Medicaid, while Medicaid reserves the right to ask for monetary contributions from the healthy partner. Note that in states that don’t allow spousal refusal, both spouses' resources are counted towards the eligibility requirement, defeating the purpose of this strategy.

For more information on how to protect your Medicaid coverage, please contact the Law Office of Inna Fershteyn at (718) 333-2395.

What to Do If Your Medicaid Application Is Denied

If your Medicaid application is denied, you may initially feel hopeless, but you have the opportunity to appeal the decision. While the requirements of Medicaid are strict for low-income individuals, there is the potential to gain great benefits. Qualifying for medicaid is a complicated process, so if you are denied at first, do not panic.

What To Do If Medicaid Denies Your Application

Medicaid is a federal and state program that assists with the cost of healthcare for those who cannot afford it. It is comprehensive health coverage that covers a number of circumstances. Eligibility varies, but in New York, you must be either pregnant, responsible for a child 18 years old or younger, blind, disabled, live with a disabled family member, or be 65 years or older. The income threshold ranges based on the household size. You can apply by phone, via a written application, or by going to your local department of social services, or on the New York State of Health website.

Upon receiving a Medicaid decision, rejection is fairly common, even if you are eligible. Below are common reasons why your Medicaid application may have been declined.

1. Missing or Incomplete Documentation

You must have a complete packet when filing your Medicaid application. While in the past they would wait for supplemental documentation if they knew you were in the process of obtaining additional information, now they are quick to deny if you do not follow up. Be sure to provide the correct documentation and fill out the entirety of the application.

2. Excess Assets

In order to be eligible, there are strict caps on the number of assets one may have. Review the income and countable assets requirements for your given state. In New York, the asset limit is $15,900, while just about every other state's cap is $2,000.

3. Transferred Assets

If you transferred assets within five years of applying for Medicaid for less than market value, you may be subject to a penalty. If a transfer of assets is to a disabled or legally blind child, you are exempt from asset transfer penalties in New York.

You will be issued a denial notice within 45 days of the application or 90 days if you filed for benefits because of disability. Upon receiving your denial notice, review it carefully and follow the directions on how to file an appeal.

Before this, you can attempt to informally ask the agent to reverse the decision. If you were declined because you made a mistake, this is the easiest and most efficient way to proceed. Escalation to a supervisor or a formal appeal may be unnecessarily complicated depending on the reason you were rejected.

The deadline to appeal may be as short as 30 days or as long as 90 days following the denial notice. Regardless of if it is requested, be sure to submit your request for appeal in writing so there is a record of it. You must be diligent about submitting by the deadline. 

After you submit, the Medicaid agency will set a hearing date. Applicants must attend the hearing or else their case will be dismissed. You have the right to have witnesses testify at the hearing and to question the witness of the Medicaid agency. 

An attorney can ensure you have all of the correct documentation and materials to present at your appeal hearing. If you win, you will receive your rightful benefits. If you lose, the notice will outline how to appeal your decision, which usually involves written arguments. You must have the assistance of an attorney for this step.

To hire a medicaid planning attorney, contact the Law Office of Inna Fershteyn at (718) 333-2395

Upcoming Changes to NY Medicaid 2022-23

Medicaid is operated on both federal and state levels, which provides a range of benefits in medical and health. Medicaid primarily is for individuals who suffer from chronic illness, are in cognitive or physical decline, injured/disabled, and require consistent medical treatment. Laws surrounding who qualifies for Medicaid change constantly, meaning it’s necessary to stay informed on the latest changes to be aware of your eligibility status. Below are some new and upcoming changes to Medicaid.

Upcoming Changes to Medicaid

Upcoming Changes to Medicaid in 2022:

Independent Assessor for Home Care - In Effect May 1, 2022

As of May 1 2022, Medicaid applicants over the age of 18 applying for Personal Care or Consumer Directed Personal Assistance Program (CDPAP) services will need to go through nurse assessments conducted by New York Independent Assessor (NYIA). The NYIA will conduct nursing assessments for “Immediate Need” applicants and others who apply to the local Department of Social Services, which is the Human Resource Administration (HRA) in NYC for personal care or CDPAP.

The NYIA will be conducting a clinical assessment in addition to a standard nurse assessment by either a doctor, physician’s assistant, or nurse practitioner. With these tests, the NYIA will determine if an applicant is eligible for personal care or CDPAP. If the applicant is deemed ineligible, they have Fair Hearing rights, meaning they can appeal their decision.

If the NYIA deems the applicant eligible, they are referred back to their local Medicaid office. The previous assessments will then be used to determine how many hours of personal care or CDPAP should be authorized. If you are approved for over 12 hours of personal care a day, the Medicaid Office or plan must refer the case back to the Independent Assessor for a third assessment, which is an Independent Medical Review (IMR). An IMR is used to determine whether the proposed plan of care is safe and can maintain the health of the applicant when they are home.

Increases in Medicaid Eligibility of Applicants 65+ and Blind/Disabled Individuals - In Effect January 1, 2023

New York Governor Hochul and State Legislature passed four increases in Medicaid eligibility for New Yorkers who are 65+ blind, or disabled in the NYS budget. Below are the four changes that will go into effect:

  • Medicaid Asset Limit has increased by nearly 50%
  • Medicaid Income Limit has increased to the same amount used for Modified Adjusted Gross Income (MAGI) Medicaid for younger people (138% Federal Poverty Line or “FPL”)
  • Medicare Savings Program: Qualified Medicare Beneficiary limit increased from 100% to 138% FPL. Individuals with higher incomes not exceeding 186% FPL will be eligible for QI-1.
  • Undocumented Immigrants Age 65+ will not be eligible for full Medicaid benefits as opposed to only “emergency” Medicaid

New Medicaid Limits in 2023 for 65+, Blind, & Disabled

Benefit Federal Poverty Line % SINGLES COUPLES
2022 2023 2022 2023 2022 2023
Income Limit Per Month
Medicaid 82% 138% $934 $1,563 $1,367 $2,106
QMB 100% 138% $1,133 $1,563 $1,526 $2,106
QI-1 135% 186% $1,529 $2,107 $2,060 $2,838
Medicaid Asset Limit $16,800 $28,134 $24,600 $37,908

Public Health Emergency - Extended Through July 2022

The Biden administration extended the COVID-19 Public Health Emergency on April 13, 2022 for 90 days. This means that the government is prohibited from discontinuing or cutting funding for Medicaid through July 2022. 

This means restrictions on eligibility cannot be implemented before October 1, 2022, which would include the 30-month “lookback” that would disqualify applicants from obtaining home care benefits, or require applicants from needing physical assistance with 3 activities of daily living or two if diagnosed with dementia in order to qualify for CDPAP.

For more information on NY Medicaid changes from 2022 to 2023, contact the Law Office of Inna Fershteyn at 718-333-2395.

Should I Create a Life Estate or an Irrevocable Trust?

As you are getting older, Asset protection and Elder Law planning becomes relevant.  As you are researching an optimal estate plan to preserve assets from nursing home bills, a life estate deed transfer may initially sound appealing. After all, a life estate deed is a legal means for transferring home ownership rights. However, there are downsides you must fully understand before making this commitment. Prior to making the decision of adopting a life estate, it is crucial to fully understand the risks.

Creating A Life Estate or Irrevocable Trust

Life estates are characterized by two or more people having ownership over a property for non-overlapping periods of time. These parties are the life tenant and the remainderman. The life tenant owns the life estate and has full control during their life. The remainderman has ownership interest upon the death of the life tenant. 

In many circumstances, executing a life estate makes the most sense. It is useful for those looking to simplify estate planning and avoiding the probate process. The transfer of the property to the remainderman is automatic, providing convenience without the need for a will. For example, parents can easily pass homeownership to their children while possessing their property for their entire lives. This provides transparency to the beneficiaries and affirms the life tenant exactly what will happen to their property when they pass away. 

Additionally, a life estate deed protects the property from a Medicaid lien and increases the tax basis. If eligible for Medicaid, the government may try to recover the costs of care from their estate once they pass away. A life estate protects the home from being included in the Medicaid recovery process.

Although a life estate may seem appealing, some caveats come with them. There are three main unfavorable aspects. If you consider these reasons as dealbreakers, a life estate will not work for your personal estate goals. 

Real Estate Related Challenges 

Upon establishing a life estate, obstacles will arise if you plan to sell or mortgage property. The remainderman must agree if you decide to borrow or sell against the property. Nevertheless, this can be solved with a Testamentary Power of Appointment in the Deed. This allows life tenants to change who receives their property by directing its disposition in their will. While it won’t sell the property, it gives the life tenant more leverage in negotiation over the remainderman. An alternative to this is the Nominee Realty Trust, where one or more children act as Trustees for all so that decisions must be followed on a majority vote.

Another obstacle is that if the property is sold, the remainderman is entitled to a portion of the profits equal to what their interest is determined to be at that time. It is also difficult to remove or change a name once it is on a real estate deed.

Legal Responsibility of Remainderman 

The problems of the remainderman become your problem as well. If this individual is in any legal predicament, such as being sued, getting a divorce, owing taxes, or filing for bankruptcy, the interest in the home is not protected. However, while claims can be made against the property, nobody can kick you out for the duration of your lifespan.

Medicaid and State Assistance Disqualification 

Giving away an interest in the property could result in disqualification from Medicaid assistance, should you need long-term care within five years of the transfer. To add on, that state could file a claim against the income portion of the payments it has made on your behalf. In this case, at least the portion of the proceeds allocated to your child would be protected.

Irrevocable Trust

Irrevocable trust is a much better alternative to protect your property from creditors including Medicaid liens and nursing home costs. For more information on irrevocable trust, please contact the Law Office of Inna Fershteyn at (718) 333-2395.

3 Reasons to Create a NY Irrevocable Trust

Elder planning is an important and necessary step to take in order to make sure that your wishes for the future are carried out in the way you intended. In this process, a decision you will make is what type of trust is best for you. A trust allows a trustee to hold assets on behalf of beneficiaries.

Creating An Irrevocable Trust

One type of trust is an irrevocable trust, which cannot be changed or revoked after signing. Giving up control over your assets is a big commitment that must be carefully considered. Individuals who would benefit from an irrevocable trust typically fall into one of three categories.

3 Reasons to Create NY Irrevocable Trust

  • Minimize Estate Taxes

The primary benefit of an irrevocable trust is minimizing estate taxes. An irrevocable trust removes all incidents of ownership, meaning your assets are removed from your name. Assets in an irrevocable trust are no longer a part of your estate, which allows for tax efficiency.

  • Government Programs 

Unfortunately, Medicare does not cover all costs that a senior citizen needs. Medicaid would pick up the tab for long-term care, but the program has strict need-based limitations. To qualify for the Medicaid income threshold, you could transfer your assets into an irrevocable trust. As long as you fund the trust at least five years before submitting your Medicaid application, the assets will not count in your qualification. After executing your irrevocable trust, a tax ID number is created which allows individuals qualifying for Medicaid to move their assets out of their name.

  • Protect Assets

To protect your assets from creditors, it usually requires your trust to be irrevocable. The Trustee and Beneficiary must be unrelated parties. For people who face lawsuits frequently, having “asset protection trusts” is important. An asset protection trust allows your hard earned money, property, etc. to be safe from creditors.

Living In a Property Transferred in an Irrevocable Trust

If you are living in a property transferred in an irrevocable trust, the creator of the trust will still play a role. For example, they are responsible for all household expenses but reserve the right to live in the house. This is known as a “life estate.” Your house becomes safe from creditors and estate taxes. However, if you change your mind about having an irrevocable trust, the grantor cannot make any changes without the permission of the beneficiary(ies). Moreover, having an irrevocable trust is a significant commitment that should not be taken lightly. 

For more information on how to decide if an irrevocable trust is right for you, please contact the Law Office of Inna Fershteyn at (718) 333-2395.

4 Reasons Why A 24-Hour Home Care Aid is Better Than An Assisted Living Facility

4 Reasons Why A 24-Hour Home Care Aid is Better Than An Assisted Living Facility

Elder care is often difficult and extensive and is different for every individual. One thing is clear - no one can or should do it alone. As our loved ones age and their needs change and very often escalate to around the clock care, we face the difficult decision - should we hire a live-in home care aid or should we resort to putting our loved ones into an assisted living facility and sometimes even a nursing home?  But how do these options compare? Based on the vast experience of an elder law attorney in NY and based on visiting many different retirement facilities in NY, Medicaid funded nursing homes in NY, and assisted living facilities in NY, we compiled these top four reasons why a home care aid or a live-in caregiver is better than a nursing home or an assisted living facility.   

hiring-a-live-in-caretaker-pros-and-cons

Live-In Caregiver or Home Care Aid in NY:

Live-in care is a service provided by either a professional caregiving company, a private hire, and the role of a live-in caretaker requires them to live in the home of the care recipient. It is implied that room and board will be provided to the caregiver. Live-in caregivers are allowed to rest and sleep, and therefore should have a 5-8 hour sleeping time allotted in the care plan. It would be beneficial to align the caretaker and care recipient’s sleep schedules.  

If you would like for there to be an active caregiver while the care recipient is asleep, overnight care and 24-hour care is also available. Overnight or 24-hour caretakers agree to and are paid to stay awake. 24-hour care is usually arranged by an agency so that the 24-hour period is split between multiple caregivers to ensure that the care recipient is never left unattended.

Whether it’s live-in care or 24-hour care, around-the-clock care provides safety and care to elderly in the comfort of their own home.

Assisted Living NY or Nursing Home NY facilities:

Assisted living is another option that may be more suitable for those who need more supervision. Assisted living facilities give the elderly personalized care in a residential setting and transfer the care recipient out of their home. Residents are typically assessed when they first move in, which allows the facility to make an individualized and specific service plan. Facilities often provide services like managing medication, assisting with bathroom use, and helping with dressing and grooming. Most facilities also provide meals, housekeeping, laundry, transportation, and social activities.

In contrast, NY nursing homes have trained medical staff that provide more medical help than help with everyday activities. Medicare and Medicaid accredit these facilities where they can provide both short-term rehabilitation and long-term medical care. NY Medicaid would cover the cost of such nursing homes, but if the person has assets, a 5 year look back provision exists.  These facilities are recommended to those who need more intensive or specialized medical care.

4 Reasons a 24 Hour Home Care Aid or Live-In Home Attendant Is Better than a Nursing Home

  1. Live-in caregivers can provide companionship and socialization to an elderly person that may be more recluse.
  2. Families of the care recipient often find comfort knowing that a caregiver is in the home with their loved one at all times and has much less exposure to people who may be sick of Covid-1.9
  3. It's much cheaper to have a live-in caregiver rather than paying for the Assisted living facility or a nursing home where cost can range up to $15,000 a month.  
  4. Seniors are a lot more comfortable in their own home especially if they have dementia or Altzeimer. 

Cons of Live-in Care

  1. Typically, live-in caregivers are privately hired so vetting people can be a long and arduous process. It depends on the caregiver’s background and qualifications as well as the needs of the care recipient. 
  2. Independent caregivers can create tax complications and arduous paperwork unless the caregiver services are covered by Home Care Aid medicaid.  
  3. It can be quite costly to maintain the home itself with property taxes, home repairs, and upkeep so an independent person is needed to take care of financial issues.
  4. Hiring a live-in caregiver is largely dependent on trust which will take time to build. The responsibilities and demands of a live-in caregiver are intense and could potentially cause relationships to sour. 

4 Benefits of Assisted Living Facility:

  1. Assisted living can provide a healthy lifestyle and social activities fostering engagement.
  2. It is a more economical choice compared to a nursing home.
  3. Family members may feel less stressed or worried knowing that their loved one is in a safe environment that will provide excellent care.
  4. Seniors can retain independence while getting back or exploring new hobbies. Without the responsibility of maintaining their home, they have more free time. 

4 Detriments of NY Assisted living Facilites:

  1. Depending on the facility, medical care may not be provided at all一especially for certain medical conditions.
  2. Seniors may find it challenging to adapt to a new place, a group setting, and new policies.
  3. Facilities could limit the senior’s privacy.
  4. Assisted living facilities in NY are very expensive. The average cost of the facility is around $10,000 a month.

If you need Elder Care planning in NY and would like to speak to NY best Elder Law attorney and NY Asset Protection lawyer please contact our Trust and Estate Planning law office at 718-333-2395 for all of your elder planning needs.

Can I Give My Assets Away To Qualify for Medicaid?

Many individuals are forced to consider applying for Medicaid for a host of reasons, all mainly to help alleviate the cost of medical care. Medicaid is a joint federal and state public health insurance program for people with low income. The program covers 1 in 5 Americans, many with intricate and expensive needs for medical care. Medicaid is the principal source of long-term care coverage for many Americans. The majority of Medicaid enrollees lack access to other affordable health insurance. Medicaid covers a broad array of health services and helps limit out-of-pocket costs.

can-i-give-my-assets-away-for-medicaid-eligibility

There are many factors to consider when applying for Medicaid, and this is widely due to the eligibility requirements that Medicaid has. If an individual has too many assets, they won’t be able to qualify for Medicaid. However, there are many legal ways to move your assets, which can allow you or a loved one to be eligible for Medicaid.

1) What qualifications do you need to have to become eligible for Medicaid? 

To be eligible for New York Medicaid, you have to be a resident of New York State, a U.S. national, citizen, permanent resident, or legal alien, in need of health care/insurance assistance, whose financial situation would be characterized as low income or very low income. You must also be one of the following:

  • Pregnant, or
  • Be responsible for a child 18 years of age or younger, or
  • Blind, or
  • Have a disability or a family member in your household with a disability, or
  • Be 65 years of age or older.

But the primary concern regarding Medicaid qualifications for many Americans is what is considered low income.  

2) How does Medicaid know what assets you have?

When you are determining if you are eligible for Medicaid, the Department of Social Services (“DSS”) will evaluate the Medicaid applicant or recipient’s income and assets that actually or will potentially exist. However, only such income and/or assets that are actually found to be readily available to the applicant may be considered in determining eligibility for Medicaid. In 2021, an individual can have no more than $17,131 in income to be eligible for Medicaid. 

Can I Give My Assets Away As A “Gift” To Qualify for Medicaid?

In general, while determining the Medicaid eligibility, any gifting of assets made by the applicant within the look-back period will render the person ineligible for Medicaid for a period of time. Currently, the look-back period is five (5) years prior to the date of application.

Everyday common gifts can be considered by this vague word, “gift.” For example, paying for your grandchildren’s college education or contributing to your local church can all be considered gifts for purposes of determining Medicaid. A common myth is that you are allowed to gift $17,131 each year without incurring a penalty for Medicaid eligibility purposes. But as the word myth suggests, this is incorrect. In 2021, the annual gift tax exclusion for federal gift tax purposes is $15,000. That means that you can open the phone book and give everyone in the phone book $15,000 this year without filing a gift tax return. However, federal tax law has nothing to do with Medicaid eligibility rules. If you are gifting $15,000 each year, those gifts will still be evaluated for Medicaid eligibility purposes.

When is a gift not a gift (or in Medicaid terms a “transfer”) for Medicaid eligibility purposes? New York State law states that a person will not be ineligible for Medicaid if they transferred assets unless it was transferred exclusively for a purpose other than Medicaid eligibility. Ok, that seems easy enough. For example, you obviously didn’t pay for your grandchildren’s college education because you were specifically trying to qualify for Medicaid. However, as a matter of policy, DSS has historically been reluctant to accept this argument from applicants who have made significant gifts of assets like paying thousands of dollars for college. The result is that many individuals are denied Medicaid eligibility despite making regular (and necessary) gifts during the look-back period. However, there have been instances where applicants successfully argued that gifts made during the lookback period were for purposes other than to qualify for Medicaid and therefore, eligible for Medicaid. While determining the applicant’s intention, the DSS will consider things such as the applicant’s physical and mental condition at the time of the gift, the applicant’s use of the gifted funds, and the applicant’s financial security. The DSS may also evaluate whether the applicant gifted their own funds or if they received the funds through inheritance or windfall. To add, the DSS may check to make sure how much time passed between the gifting and the applicant’s institutionalization and whether this applicant lived alone when they made the gifts. Finally, the DSS may review whether the applicant had considered institutionalized care when the gifts were made.

3) Do assets disqualify you from having Medicaid?

No, not necessarily. Having assets won’t automatically disqualify you from having Medicaid. For example, in New York, a single applicant who is blind, disabled, or 65 and older is allowed to retain $15,900 in liquid assets. And for married couples, asset limits vary by the state, the Medicaid program, and if one or both spouses are applying for Medicaid.

However, just because a senior’s assets exceed the general limits listed above it does not mean they are automatically ineligible for Medicaid. States implement different rules and resource limits, and an elder can create a personalized asset spend-down plan to meet their state’s eligibility criteria. States also have varying laws regarding trusts and how they are counted, or not counted, when determining Medicaid eligibility. 

There are also many other guidelines for calculating income and figuring out one’s medical need for care and assistance. Also, different financial rules apply to married couples. It is recommended to familiarize yourself with these eligibility requirements early on in case you ever need to help an aging loved one apply for Medicaid (or file an application yourself).

4) How can an Elder Law Attorney help?

Given the economic environment, it is common for lawyers to encounter situations where applicants gift their children or grandchildren during the look-back period which makes the Medicaid application process more complicated. And in most cases, handling the application process without any professional assistance can result in a determination of ineligibility and even a costly Medicaid penalty period. The assistance of competent counsel practicing in the area of elder law is imperative. It is important to work with an experienced elder law attorney with Medicaid planning experience. 

For further Medicaid planning, please contact the Law Office of Inna Fershteyn at (718) 333-2395 to receive the most highly qualified legal advice.

What Should Loved Ones be Made Aware of When Seniors are Returning to Nursing Homes After a Hospital Stay?

When your elderly loved ones are returning to a nursing home from a hospital, there are a number of things that you should be made aware of. Understanding what documents are protecting their medical records and attaining healthcare authority or access to healthcare records is essential to managing a loved one’s care. The following information will help make sure that you’re fully prepared to answer any questions regarding the care of an elderly individual in your family.

returning to senior housing after a hospital stay

HIPAA, or the Health Insurance Portability and Accountability Act, has a significant influence on providing medical care for loved ones. This federal law was passed in 1996 to preserve the privacy of medical data about persons. It mandates that healthcare providers and insurance companies maintain medical information private and safe. Unless the patient gives explicit permission, this information cannot be shared. This gives individuals more control over their health information and the ability to regulate who has access to it.

With the public's interest in COVID-19 instances heightened, many people want to know if anyone in their neighborhood has tested positive. HIPAA's right to privacy clashes with this demand for knowledge. HIPAA protects patients' medical information even in the midst of a global epidemic.

HIPAA-protected information includes: 

- any and all confidential info in a patient's medical record 

- any discussions or information collected by a doctor or medical experts, and 

- information on medical billing

A patient can allow their caregiver access to patient data regarding their care by signing a HIPAA authorization form. In many cases, having access to this information allows a caregiver to make better judgments about the patient's treatment. This also enables caregivers to interact directly with a patient's doctor in coordinating treatment and care amongst medical organizations, as well as to negotiate and pay medical expenses on behalf of the patient.

Upon Discharge, Re-evaluation of Physical and Cognitive Abilities is Suggested

Although relatives may be under a lot of stress as discharge day approaches for their loved one, it's a good idea for them to discover how changes in their loved one's condition will affect whether their requirements can still be addressed in their present community and the expense of the nursing home. Reading the community's qualifying requirements for resident admittance is an excellent place to start.

A cognitive evaluation is usually performed upon initial admission and whenever a resident's health changes in order to evaluate their physical and mental skills and identify their care needs. Workers at a loved one's senior care facility should communicate with family members and hospital personnel, such as physicians, social workers, and therapy departments, to assess the patient's changing needs and whether or not the community can satisfy them. Caregivers should be proactive in ensuring that the care team communicates well.

In light of COVID-19, How Have Nursing Home Regulations Changed?

CMS released guidelines on how nursing homes should respond to the pandemic as the number of COVID-19 cases and fatalities rose. In a February 2020 informative bulletin, the Centers for Disease Control (CDC) encouraged health care institutions to evaluate the COVID-19 guidance and recommendations, as well as their own infection control policies. 

With the primary focus on the challenges confronting nursing homes and state survey agencies as they respond to the pandemic, legislators may reconsider whether federal Medicare and Medicaid requirements should be adapted to improve oversight and whether extra capital is required to support providers and agencies in ensuring adequate resources.

How Are The Federal Requirements for Nursing Home Oversight Enforced?

States usually conduct frequent inspections known as surveys to ensure nursing facility compliance with federal Medicare and/or Medicaid standards. States get 75 percent federal matching money for Medicaid nursing facility survey and certification activities, whereas Medicare SNF survey and certification activities are financed by a discretionary appropriation.

The penalties for institutions that are found to be outside of compliance with federal regulations differ based on whether the defect is considered to directly threaten the health or safety of patients.

Civil money penalties (CMPs) can be assessed for the number of days a facility is not in significant compliance or for each occurrence of noncompliance. CMPs can vary from $6,525 to $21,393 for inadequacies that provide an immediate threat, and from $107 to $6,417 for defects that do not pose an immediate threat but either caused actual harm or have the potential to create more than minor injury.

If the individual you are caring for does not have a Healthcare Power of Attorney, it is advised that you persuade them to sign a HIPAA release and maintain copies of these documents in their file. This enables you to contact medical experts as well as any other family members to whom the patient has provided permission. 

For more information on creating a POA for your loved ones please contact The Law Office of Inna Fershteyn (718) 333-2395 for an experienced and diligent elder attorney who can guide you through this process.

How Does A Medicaid Asset Protection Trust Work?

Today we are going to learn about what a Medicaid Asset Protection Trust is and how it works. We also going to discuss when it should be used, it’s benefits and how an elder law attorney can help you through the process.

What is a Medicaid Asset Protection Trust?

A Medicaid Asset Protection Trust, sometimes called Pooled Income Trust, is a tool to protect your assets and allow people to qualify for Medicaid long-term care.

how-a-medicaid-asset-protection-trust-works

When should a Medicaid Asset Protection Trust be used?

To protect your assets, the trust has to be created 2.5 years before home care Medicaid is needed or 5 years before nursing home care is needed. This is because Medicaid inputs a “look-back” period when someone applies for Medicaid. The reason a certain period of time has to pass before your assets are protected is that the transfer of assets into a Medicaid Asset Protection Trust is considered a “gift.” Medicaid also enforces strict income and asset guidelines. In order to qualify for Medicaid, you cannot have more than $2,000 of liquid assets. Liquid assets are assets that can be easily converted to cash in a short amount of time. Examples include cash, checking accounts, and saving accounts. Once you meet the guidelines, Medicaid looks into what happened to your assets which is why you need to prepare years beforehand. The applicant still has to report the existence of the Medicaid Asset Protection Trust – it is not hidden from the government in any way.

How Does a Medicaid Trust Work?

A Medicaid Asset Protection Trust is an irrevocable trust which means once it has been made, it cannot be changed or terminated without the permission of the grantor’s beneficiary. Assets placed in the trust are considered gifts to the beneficiaries, which protects the assets from Medicaid. In New York, an irrevocable trust can be revoked as long as the beneficiaries and the grantor consent to it. But, beware that once a Medicaid Asset Protection Trust is revoked, the assets are no longer protected by this trust. 

The Grantor of a Medicaid Trust has to name someone other than themselves or their spouse as the Trustee. This means that the Grantor is giving up control. However, the Grantor still has the power to remove and change any trustee as well as the power to change the beneficiaries of the Trust. If the Grantor owns a home, they can maintain the right to live in that home rent-free for their entire life, and their spouse can do so too. This “life estate” lets the grantor continue to obtain any property tax exemptions.

The Grantor is not entitled to the principal of any assets placed in an Irrevocable Trust which means that they are not entitled to any of the property that can generate ordinary income.
However, they can receive all income (interest, dividends, rental income, etc.) that the Trust assets may generate. The Trustee’s role is to invest the assets held by the Trust. However, because the Grantor maintains some control over assets in the Medicaid Trust, it is considered a grantor trust, and they are still taxed on any income.

When an Irrevocable Trust is created, assets that the Grantor wants to protect will be retitled in the name of the Trust, which is known as “funding the trust.” Assets can include anything from a checking or brokerage account to property. However, Individual Retirement Accounts do not get retitled into the name of the Trust because they are already protected for Medicaid purposes by law – as long as the required minimum distribution is taken. 

Usually, Grantors will place their home and some liquid assets in the trust and name a child as trustee then not think about it for years. Most trusts provide that after the death of one of the spouses, the income interest continues for the surviving spouse. Then, after the death of the remaining spouse, the assets are distributed to beneficiaries as they would be in a will. 

What are the benefits?

The main benefit of a Medicaid Asset Protection Trust is the ability to receive Medicaid. In general, with trusts, you can protect your and your family’s assets and pass on any valuable assets, like property. Some other specific benefits have been mentioned above such as property tax exemptions, uninterrupted income, and the ability to still use the assets after the grantor’s death. Some other benefits include:
● Avoidance of probate court
● Maintenance of privacy
● Avoids the hassle of multi-state probate proceedings- in case trustees do not reside in the state that the grantor did
● Provides planning for mental disability- should the grantor ever not be sound of mind, they cannot amend the trust
● Keeps assets in the immediate family
● Keeps assets out of surviving children’s divorces
● Keeps money out of creditors’ reach

How can an elder law attorney help?

An elder law attorney can help you decide whether a Medicaid Asset Protection Trust is right for you. A host of factors goes into the decision, such as the client’s available funds, relationship with intended beneficiaries, and timing. It is important to meet with a knowledgeable and experienced elder law attorney to assess which plan best achieves your goals and relieves any of your concerns.

For further Medicaid planning, please contact the Law Office of Inna Fershteyn at (718) 333-2395 to receive the most highly qualified legal advice.

Understanding the Medicaid Look-Back Period and Penalty Period

If you need help with paying for healthcare costs and have low-income and limited resources, you might qualify for Medicaid. Medicaid is a federal and state program that offers medical and health coverage for people with low incomes and limited assets who otherwise cannot afford paying for health care. In order to be eligible you must meet strict financial eligibility requirements both during the application process and after you have qualified.

medicaid look back penalty period

Financial Eligibility Requirements for Long-Term Care Medicaid 

Many low-income seniors find that their countable assets and/or income exceed the Medicaid restrictions in their state. They must carefully reduce or "spend down" extra funds on things like medical expenditures, house improvements, a prepaid funeral plan, and so on in order to meet the financial requirements. Gifting—giving away money or assets for less than market value—is not permitted as part of a Medicaid spend-down strategy.

The Centers for Medicare and Medicaid Services (CMS) devised a system for analyzing all applicants' financial histories to prevent seniors from simply giving away all of their assets to family and friends and then depending on Medicaid to pay for their long-term care. The following sections review the ins and outs of the Medicaid look-back period, as well as what happens when a senior decides to transfer assets.

The Medicaid Look-Back Period

Medicaid only looks at applicants' previous financial information for a limited period of time. This is known as the Medicaid Look-Back Period. Each state's Medicaid program has slightly different eligibility standards, but most states look at all of a person's financial transactions five years back (60 months) from the date of their qualifying application for long-term care Medicaid benefits. (This timeframe is only 30 months in California.)

There is no difference between the number of gifts an applicant made and to whom the gifts were given during the Medicaid Look-Back Period—barring a few exceptions, which will be discussed later on. If a senior's money or assets changed hands for less than FMV in the five years leading up to their application date, they will incur a penalty period during which they are ineligible for Medicaid.

The Medicaid Penalty Period

If a senior files for Medicaid and is found to be otherwise eligible, but has gifted assets within the five-year look-back period, they will be prohibited from receiving benefits for a specified amount of months. This is known as the Medicaid Penalty Period and there is no limit to how long a penalty period can be. 

For example, if you write a check to a family member for $14,000 and apply for Medicaid long-term care within five years of the date on the check, then Medicaid will delay covering the cost of your care because you could have used that money to pay for it yourself. The penalty period begins running on the date a senior applies for Medicaid coverage, not the date on which they gifted the money.

The length of the penalty period is determined by the total amount of assets gifted by the applicant and their state's specific "penalty divisor," which is the average monthly cost of a long-term care facility in that state. (The divisors may be the averaged daily expenses in some jurisdictions, and several states even employ divisors that are particular to nursing home costs in individual counties.) These figures are published annually by each state’s Medicaid program.

Who Pays During Medicaid Penalty Periods?

When a senior requires care but has spent down all of their assets (inadvertently) and is no longer covered, one might wonder who pays for their care. If a senior has gifted countable assets during the look-back period and needs nursing home care, they will have to pay for it out of pocket until the look-back period is over and the senior can apply for Medicaid without difficulty, or until the penalty period expires and they are eligible for coverage.

Exemptions and Exceptions to Medicaid Gifting Rules 

Medicaid penalties do not apply to all gifts.

One exemption you may receive is a “child caregiver exemption” for transferring assets to a child who has taken care of you for at least two full years. For example, if your daughter's care allowed you to put off moving into a nursing home, then transferring your home into her name for less than fair market value would not be penalized. Even if a senior applies for Medicaid within five years after the transfer, the "child caregiver exemption" still applies.

Another exception to the rule is a gift (or the creation and funding of a trust) for a kid who is blind or disabled under the Social Security Administration's standards. No penalty will be imposed on such a gift, regardless of its size.

Finally, gifts between spouses are never subject to any penalties. There is no need to impose a penalty on such transactions because both spouses' entire assets are counted when one spouse applies for long-term care Medicaid.

Successfully applying for Medicaid is a complicated and difficult process, and is rarely something you do on your own. Mistakes can have long-term financial consequences for a family. If you or someone you know plans to apply for long-term care Medicaid, please contact the best elder lawyer who can guide you through the application process at the Law Office of Inna Fershteyn at (718) 333-2395