Medicare - Trust and Estate Planning Law Office

How Can I Increase My Home Attendant Hours?

The process of applying for a home attendant requires many documents and a lot of patience when waiting for a response. Medicare typically provides home attendant assistance for a maximum of 28 hours per week, and in some cases, up to 35 hours per week. However, for many elderly individuals who are incapable of walking, cooking, and showering by themselves, around the clock attention is crucial. Oftentimes, the process of increasing home attendant hours is even more gruesome. Medicare will justify any reason against extending current hours and make the vulnerable individual’s life easier. In this article, the Trust and Estate planning office will explore ways to maximize the amount of home attendant hours so that you or a loved one can receive the care that suits your needs.

Understanding The Current Home Attendant System

To receive at-home medical care, the applicant needs to fit multiple criteria. Primarily, you will receive a physical assessment to determine whether or not you are eligible for the program as well as assess the amount of hours you will receive each week with a home attendant. A physician's recommendation is often required to support the need for a home attendant. In many cases, patients may receive less hours than they feel is necessary. In these cases, there are various ways to obtain additional home attendant hours. It is important to assess each option to determine which one works best for you.

What You Can do to Receive Additional Home Attendant Hours

Medicare advantage plans- A Medicare advantage plan, or Medicare part C, is an alternative way to obtain additional home attendant hours. These plans are offered by private insurance companies that are approved by Medicare. Depending on the plan that you chose, they will provide the benefits of Medicare as well as additional services and coverage. For example, if Medicare provided you with a limited number of home attendant hours, a Medicare advantage plan can cover the costs of additional hours if needed.
Medicaid waiver programs- Some states have implemented Medicaid waiver programs in which Medicaid and Medicare can work together to fulfill the needs of those who require additional support. This program will allow you to receive additional home attendant hours if eligible and allows individuals who require constant care to reside at home rather than a nursing facility. However, these programs have many eligibility requirements, including proof that you need an equivalent amount of care that you would receive in a nursing home. If you believe that you qualify for additional care, consulting with a knowledgeable and experienced attorney will assist you in applying to these programs.
Appeal the decision- If you disagree with the amount of home attendant hours Medicare has provided, it is in your best interest to file an appeal as soon as possible. Attorney Inna Fershteyn is an experienced and proficient attorney who will help you appeal a Medicare decision pertaining to your home attendant hours and provide you with additional care if you feel it is necessary. Consulting with an attorney regarding your appeal can relieve stress and increase your chances of approval. Additionally, if your home attendant hours were reduced by Medicare, appealing the decision can help restore your initial amount of hours.

In 2020, Attorney Inna Fershteyn was introduced to a case in which a client’s home

attendant hours were reduced substantially although the client required round-the-clock care. Attorney Inna Fershteyn helped this client win a fair hearing and ensured that their amount of care would be restored to the original amount of hours.

CDPAP- The Consumer Directed Personal Assistance Program is a Medicaid program which allows an individual to designate a family member to be a home attendant and get paid hourly in the process. Although Medicaid pays for up to sixty hours of care based on eligibility, home attendants may apply to get paid overtime which will compensate for additional services.
Request a physical reassessment- Before receiving a home attendant, a patient must undergo a physical examination to establish their eligibility and the extent of care necessary. A physical reassessment can reevaluate your necessity for additional care and can grant you extra home attendant hours.

How can I benefit from an attorney in this process?

If you or a relative feel that you need to increase your home attendant hours for any amount, but your claim has been unfairly denied, a Medicaid attorney will help. In fact, consulting with a knowledgeable attorney is the best approach to take in preparation for a fair hearing or challenging Medicare’s response. Inna Fershteyn has over 20 years of experience helping clients extend their home attendant hours. She will assist you by preparing a strong application for CDPAP, Medicaid waiver programs, or Medicare advantage plans. Most importantly, she will attend to your emotional needs through this long winded process. If you believe that you require additional home attendant hours and fit all of the requirements, yet your request has been unjustly denied, please contact the Trust and Estate Planning Office 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.

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

Live-in caregivers can provide companionship and socialization to an elderly person that may be more recluse.
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
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.
Seniors are a lot more comfortable in their own home especially if they have dementia or Altzeimer.

Cons of Live-in Care

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.
Independent caregivers can create tax complications and arduous paperwork unless the caregiver services are covered by Home Care Aid medicaid.
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.
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:

Assisted living can provide a healthy lifestyle and social activities fostering engagement.
It is a more economical choice compared to a nursing home.
Family members may feel less stressed or worried knowing that their loved one is in a safe environment that will provide excellent care.
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:

Depending on the facility, medical care may not be provided at all一especially for certain medical conditions.
Seniors may find it challenging to adapt to a new place, a group setting, and new policies.
Facilities could limit the senior’s privacy.
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.

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.

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.

When POA Isn’t Enough: Authorizations Needed to Act on A Loved One’s Behalf

Family caregivers are often given the responsibility to access private documents/information regarding their loved ones due to the large amount of paperwork that might arise pertaining to their personal care. Caregivers often feel bombarded with signing, filing, mailing, or faxing such documents, which is where Power of Attorney documents (POAs) come at hand, saving time and stress. In some cases, a few organizations require their own documentation to approve contributions in one's affairs. An individual should never take on this lengthy process by themself. To minimize the risk of making a mistake that may cause dire consequences down the road, the best approach is to hire an elder care attorney.

Hiring a Power of Attorney is Crucial for Seniors and their Caregivers

Elder law attorneys specialize in legal concerns that affect older individuals, their spouses, and their children—specifically the medical and financial aspects of them. A Power of Attorney document allows certain individuals who are identified as “the agent” to legally make decisions on behalf of another person who is identified as “the principal.” The individual is then granted power upon the principal’s personal matters. It is evident that such preparations cannot be legally processed without such documents being authorized.

However, POAs are not always apodictic. The actions an agent can or cannot take on behalf of a principal, as well as when their powers commence and stop, might differ depending on how these papers are written. Caregivers may run into issues when attempting to utilize POA forms for healthcare and money to oversee the care of seniors if they are not correctly prepared or interpreted. Long before incapacitation becomes a concern, families should prepare these legal documents. When a loved one is unexpectedly disabled due to an accident or sickness, POA paperwork can allow agents to step in and help handle the situation—provided those documents are prepared appropriately.

Some Entities Do Not Accept Power of Attorney

As useful as POA’s are, third parties such as banks are reluctant to approve such financial documents due to the possibility of fraud, in which case they may be held responsible for any harm that results.

Such banks take an extended period of time to verify the legitimacy of a financial Power of Attorney and may even want to speak with the attorney who finalized it. In addition, they might also require that the agent and/or future POA sign a written statement declaring that they are operating legally, therefore absolving the other party of all liability. Nonetheless, there should be no issues arising besides the time-consuming process of being approved as a POA.

Authorizations Needed to Manage a Senior’s Care

A SSA Authorized Representative

Helping a loved one or assigned “senior” with Social Security applications is possible with the correct documentations, one can apply to be their authorized representative by completing the SSA-1696 Appointment of Representative Form.

SSA Representative Payee

You must apply to become a representative payee if you want to actively help a Social Security recipient manage their retirement payments and/or Supplemental Security Income (SSI). All beneficiaries who are unable to manage their own payments must have a representative payee according to the Social Security Administration.

While this may be the authority you're searching for, it's important to note that it comes with a lot of responsibility. This work necessitates a thorough recording of all a beneficiary's benefits and how they are utilized, requiring attentive and responsible individuals. If there is no family member or acquaintance available to hold the “rep payee” title, the SSA will designate another qualified beneficiary to hold such recipient benefits.

VA Fiduciary Designation

Administering veteran benefits also requires its own process. Obtaining POA authority is not a satisfactory requirement for the U.S Department of Veterans Affairs (VA). The VA will request the appointment of a fiduciary if a physician or a court of law determines that a veteran (or surviving spouse) is incapable of handling his or her money. A close friend or relative is readily available to fulfill such a position as long as the VA successfully and thoroughly conducts a close investigation of such individuals’ competence. If there is no family member or acquaintance available to hold responsibility for the veteran, the VA will designate another qualified beneficiary to hold such recipient benefits.

Medicare Authorization

It is important to note that Medicare will not provide disclosed health information to an assigned caregiver regardless of relationship to the agent. There must be a written authorization already submitted and approved by the Centers for Medicare and Medicaid Services; verbal permission is also an accepted option. Medicare enrollees may be able to speak and answer simple questions over the phone, giving their caregivers permission to disclose coverage data. If you and your loved one are unable to speak on the phone together, consider attempting to “include them” using your cellphone or other three-way calling device to keep all parties on the same page.

The "1-800-MEDICARE Authorization" Form can be filled out and mailed in or done over the phone with the help of a customer service professional. Please note that certain private insurance companies frequently have their own processes for these documents, so make sure to ask about their unique permission needs.

Be Proactive About Caregiver Documentation

Keep in mind that many problems may be addressed with a combination of goodwill, clear explanations, and reasonable inquiries asked of the appropriate individuals when advocating for your loved one or assigned “agent.” If you're unsure, ask to talk with a supervisor. If no one is available, or if no amount of logical conversation appears to be working, you have the right to consult with legal counsel.

If you are in need of highly qualified and experienced help regarding a Power of Attorney issue, please contact the Law Office of Inna Fershteyn at (718) 333-2395 to have all of your authorization questions answered.

Can You Transfer Your Medicare and Medicaid Plans When You Move to Another State?

Life is a mystery filled with the unknown, you may have lived in a certain state for almost the entirety of your life and now decided to move to a new state. Regardless of the reasoning behind your residence movement, whether it be required by your job, to be closer to your family members, or just to try out a new location, you should consider the necessary steps of transferring your healthcare plans to your new residence. Depending on which medical insurance plan you have, there are different actions that can be taken to ensure that you have access and coverage to insurance when you relocate.Your ability to take your insurance with you depends on the type of insurance you have, whether it is Medicaid, Medicare, or Medicare Advantage. An esteemed attorney can assist you in discovering if you can bring your insurance with you by providing guidance on the best plan of action to take in relation to your specific situation.

In the case of Medicaid it is important to note that Medicaid has its own eligibility qualifications in each state. That being said, just because you are eligible for Medicaid in NY does not automatically guarantee that you will remain eligible for Medicaid in another state, such as Florida or Texas. Unfortunately, you will not be able to keep your Medicaid plan upon relocating to a new state. This is not devastational and does not bar you from having Medicaid coverage. It simply means that you will have to apply for Medicaid in whichever state you move to. An attorney can assist you in the process of reapplying for Medicaid by first calling the Medicaid office located in the state you are planning on moving to and then filling out all of the appropriate forms and applications. Prior to applying for benefits in the new state, you must first cancel the benefits you are receiving from the previous state you lived in. You are encouraged to complete your Medicaid applications for the new state as soon as possible in order to avoid paying for health insurance out of pocket. Even in the case that you have to pay out of pocket for a short period of time, Medicaid will reimburse you as long as you have a detailed and accurate record or receipts of all health care service costs.

If you have the original Medicare provider, then you have much less to worry about when it comes to relocating to a different state. Plans A and B ensure that you will remain covered regardless of which state you move to. This is due to the fact that Medicare is a federal program that is run by the government. As long as your medical provider accepts your Medicare insurance plan, you are all set for healthcare coverage. The only drastic difference that may impact your coverage would be the cost of your premiums, as they may increase or decrease depending on the state you move from and the new state you are moving to. Additionally, your Medigap plan is expected to cover your healthcare costs even if you move across the country. The only exception to the Medigap coverage would be if you moved to the specific states of Massechusttes, Minnesota, or Wisconsin because these states have their own individual Medigap plans. If you have any questions or concerns regarding transferring your original Medicare Plan A or B to a new state, you should contact an attorney to answer any of your inquiries.

Medicare Advantage and Part D of Medicare are a different story than the original Medicare plan. This is because these plans have a specified service area, which means that there is no guarantee that it will provide coverage for more than one state. You may contact an attorney to help you determine if your new state falls within the specified service location of the Medicare Advantage and Part D plans. Moving into a new specified area may be complex due to the fact that you have a limited enrollment period during which you may change plans outside of the typical annual enrollment period. The annual enrollment date is between October 25th and December 7th. You should make your current plan aware of your intention to move to a new state. This will allow your special enrollment period to begin the month prior to your move and continue for a two month period after you move. However, if you make your plan aware of your relocation after you move, then your opportunity to switch plans begins the month that the plan becomes aware of your relocation. Afterwards, you will have two full months as part of the special enrollment period.

For further healthcare eligibility information please contact the Law Office of Inna Fershteyn at 718-333-2395 to effectively maintain coverage even when you move to a new state.