Consumers Guide To Medicaid by 6O9mDS

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    You Can Find Good Nursing Home Care
      Without Spending Your Last Dime!




                                Brought to you as a service of


                    Mulder & Freedman, P.C.
                         When Families Want To Legally Protect
                         A Lifetime Of Savings For A Loved One
                          Who Needs Quality Long Term Care
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                               4545 Mt. Vernon
                             Houston, Texas 77006
                                713-721-5657
                             www.MedicaidHelp.net


                             Introduction

     The decision to move a family member or a loved one into a
nursing home is one of the most difficult decisions you can make.

     Perhaps the move is being made because the family member
cannot care for him or herself, or has a progressive disease like
Alzheimer’s, or has had a stroke or heart attack.

     No matter the reason, the family members involved are almost
always under great stress.

     At times like these it’s important that you pause, take a
deep breath and understand that there are things you can do. Good
information is available. You can make the right choices for you
and your loved one.

     The Consumer’s Guide To Medicaid Planning and Protection of
Assets is designed to provide you with basic information and
answers to some of the common questions we encounter in our Elder
Law practice on a daily basis.

     Since Medicaid rules and procedures can be confusing, we’ve
tried to keep this information as simple as possible, often using
realistic stories to clarify key points.

     Our clients have found this guide to be a valuable resource.
We hope you will find it useful, too.



                                                    Robert Freedman
                                                       James Mulder
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    Americans are living longer than ever before.
     At the turn of the 20th century, the average life expectancy
was about 47 years. As we enter the 21st century, life expectancy
has almost doubled. As a result, we face more challenges and
transitions in our lives than those who came before us.

     One of the most difficult transitions people face is the
change from independent living in his or her own home or apartment
to living in a long-term care facility or nursing home.

     There are many reasons why this transition is so difficult.
One is the loss of a home - a home where the person lived for many
years with a lifetime of memories. Another is the loss of
independence. Still another is the loss of the level of privacy
we enjoy at home, since nursing home living is often shared with a
roommate.

     Most people who make the decision to move to a nursing home
do so during a time of great stress.

     Some have been hospitalized after a stroke. Some have fallen
and broken a hip. Still others have progressive dementia, like
Alzheimer’s disease, and can no longer be cared for in their own
homes.

     Whatever the reason, the spouse or relative that helps a
person transition into a nursing home during a time of stress
faces an immediate dilemma of how to find the right nursing home.
The task is no small one. Families breathe a huge sigh of relief
when the right home is found and the loved one moves into the
nursing home. For many, another difficult task is just ahead: How
to cope with nursing home bills that may total $3,500 to $5,000
per month or more?
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             How to Pay for Nursing Home Care
     One of the things that concern people most about nursing home
care is how to pay for that care. There are basically four ways
you can pay the cost of a nursing home:

     1. Long Term Care Insurance – If you are fortunate enough to
have this type of coverage, it may go a long way toward paying the
cost of a nursing home. Unfortunately, long-term care insurance
is only now becoming a popular solution. Most people facing a
nursing home stay do not have this coverage.

     2. Pay with Your Own Funds – This is the method many people
are forced to use at first. Quite simply, it means paying for the
cost of a nursing home out of your own pocket. Unfortunately with
nursing home bills averaging between $3,500 and $5,000 per month
in our area, few people can afford a long-term stay in a nursing
home.

     3. Medicare – This is the national health insurance program
primarily for people 65 years of age or older, certain younger
disabled people, and people with kidney failure. Medicare
provides short-term care assistance with nursing home costs, but
only if you meet the strict qualification rules.

     4. Medicaid – This is a federal and state funded medical
benefit program that can pay for the cost of the nursing home. It
requires that certain asset and income tests be met and is
administered by each state.

     The first two methods of private pay (using your own funds)
and long-term care insurance are self–explanatory, so our
discussion will concentrate on Medicare and Medicaid.



                       What About Medicare?

     There is a great deal of confusion about the differences
between Medicare and Medicaid.
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     Medicare is a federally funded health insurance program
designed for older individuals (i.e. those 65 or older).   It
provides only limited benefits for long-term care.




     In general, if you are enrolled in the traditional Medicare
plan, have had a hospital stay of at least three days, and are
then admitted into a skilled nursing facility (often for
rehabilitation or skilled nursing care) Medicare may pay for a
limited period. (If you are a Medicare Managed Care Plan
beneficiary, a three-day hospital stay may not be required.)

     If you qualify, traditional Medicare may pay the full cost of
the nursing home stay for the first 20 days. It might continue to
pay the cost of the nursing home stay for the next 80 days, but
you are responsible for a daily deductible of about $124. Some
Medicare Supplement Insurance policies will pay the cost of that
deductible from day 21 through day 100, as long as you continue to
meet the strict qualifying rules.

     In the best-case scenario, the traditional Medicare or
Medicare Managed Care Plan may pay for up to 100 days for each
“spell of illness”. In order to qualify for this 100 days of
coverage, however, the nursing home resident must be receiving
daily “skilled care” and generally must continue to “improve”.
(Note: Once a Medicare/Managed Care beneficiary has gone 60
consecutive days without receiving a “covered level of care”, he
or she may again be eligible for the 100 days of skilled nursing
coverage for the next spell of illness.)

     While it’s never possible to predict at the outset how long
Medicare will cover the rehabilitation, from our experience it
usually falls far short of the 100 day maximum. Even if Medicare
does cover the 100-day period, what happens then? What happens
after the 100 days of coverage have been used?

     In either case you’re back to one of the other three
alternatives, long-term care insurance, paying bills with your own
assets, or qualifying for Medicaid.
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                         What is Medicaid?
     Medicaid is a benefit program funded by both the federal
government and each state. It is administered by the state. The
rules vary from state to state.




     One primary benefit of Medicaid is that, unlike Medicare
(which pays for skilled nursing), the Medicaid program will pay
for long-term care in a nursing home once you have qualified.

     Medicare does not pay for treatment for all diseases or
conditions. For example, Alzheimer or Parkinson’s disease may
cause a long-term stay in a nursing home, and even though the
patient receives medical care, Medicare will not pay for the
treatment.

     These stays are called custodial nursing stays. Medicare
does not pay for custodial nursing home stays. In that instance,
you will either have to pay privately (i.e. using long-term care
insurance or your own funds), or you’ll have to qualify for
Medicaid.



                Why Seek Advice for Medicaid?
     As life expectancies and long-term       care costs continue to
rise, the challenge quickly becomes how       to pay for these services.
Many people cannot afford to pay $3,500       per month or more for the
cost of a nursing home. If you can pay        for a while you may find
your life savings wiped out in a matter       of months, rather than
years.

     Fortunately the Medicaid program is there to help. In fact,
in our lifetime, Medicaid has become a long-term care “insurance”
for the middle class. To receive Medicaid benefits you must pass
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certain income and asset tests. The reason for Medicaid planning
is simple. First, if the patient is married, you need to preserve
enough assets for the security of the spouse - they too may have a
similar crisis. Second, the rules are extremely complicated and
confusing. Without planning and advice, many people spend more
money than necessary and jeopardize their family security.

     Some families spend virtually all of their savings on nursing
home care. Medicaid, however, does not necessarily require you to
do so. There are a number of strategies you can use to protect
your family’s financial security.



           Exempt Assets and Countable Assets:
                       What Must Be Spent?

     To qualify for Medicaid, applicants must pass some fairly
strict tests on the amount of assets they can keep. To understand
how Medicaid works, you first need to understand the difference
between what Medicaid calls exempt and countable assets. Exempt
assets are those that Medicaid will not take into account (at
least for the time being). In general, the following are some of
the exempt assets:

              Home, no matter what its value. The home must be the
               principal place of residence. The nursing home
               resident may be required to indicate an “intent to
               return home” even if this never actually takes place.

              Personal belongings and household goods.

              One car or truck.

              Burial spaces and certain related items.

              Up to $1,500 designated as a burial fund for applicant
               and spouse.
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              Irrevocable prepaid funeral contract.

              Cash value of life insurance, if the face value is
               $1,500 or less. If it exceeds $1,500 in total face
               amount, then the cash value of these policies is
               countable.

     Most other assets are countable. For example, each of these
items is countable: Cash, savings, and checking accounts, credit
union accounts.

                Certificates of deposit and money market accounts

                U.S. Savings Bonds




                Stocks, bonds, or mutual funds

               Individual Retirement Accounts (IRA) Keogh, 401K
           and 403B plans

                Nursing home accounts

                Prepaid funeral accounts that can be canceled

                Trusts (depending on the terms of the trust)

                Real estate (other than the residence)

                Mortgages held on real estate sold

                Oil and mineral rights

                Boats or recreational vehicles
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     While the Medicaid rules themselves are complicated and
tricky, it’s safe to say that a single person will be asset
qualified for Medicaid in Texas as long as he or she has only
exempt assets plus no more than $2,000 in cash or other countable
resources.



         Medicaid Planning for Married Couples:
              The Spousal Impoverishment Rules

     Prior to 1988, paying the nursing home costs for one spouse
often led to the bankruptcy of the healthier non-institutionalized
spouse. Thanks to the Spousal Impoverishment provisions of the
Medicare Catastrophic Cost Act of 1988 qualified married couples
now have rules that can protect both income and assets for the at-
home or “Community Spouse”.

     Under these provisions, Medicaid divides the assets between
the Nursing Home Spouse and the Community Spouse. Basically, in a
division of assets, Medicaid examines the couple’s countable
resources. Exempt assets are omitted from the calculation.



     Medicaid divides the countable assets in two. The “Community
Spouse” is allowed to keep one half of all countable assets to a
maximum of approximately $100,000. The amount the at-home spouse
is allowed to keep is called the “Community Spouse Resource
Allowance”. It may also be called the “Protected Resource
Allowance”. The other half of the countable assets must be “spent
down” to $2,000.    Each state also establishes a monthly income
floor for the at-home spouse. This is called the Minimum Monthly
Maintenance Needs Allowance. In Texas for 2008, this amount is
the lesser of their combined income or $2,610.
     If the Community Spouse does not receive at least $2,610 in
monthly income, then he or she is allowed to divert a portion of
the income of the Nursing Home Spouse to reach the “Minimum
Monthly Maintenance Needs Allowance”. If the Nursing Home Spouse
has any remaining income, it goes to the nursing home. This
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avoids the necessity for the at home spouse to face gradual
impoverishment by using up savings each month.

     Assume the Community Spouse receives $970.00 per month in
Social Security. The Nursing Home Spouse receives Social Security
of $1550 and a pension of $257 for a total of $1807. The
Community Spouse is $1,640 “short” each month.

     $2,610    At-home spouse’s monthly needs allowance (per
                   formula)
     -   970   At-home spouse’s Social Security
     $1,640       Amount of monthly short fall

     In this case, the Community Spouse will receive $1,640 (the
shortfall amount) per month from the Nursing Home Spouse’s total
income. The balance of $167 goes to pay the nursing home.




          Medicaid Planning for Married People
     Ralph and Alice were high school sweethearts who lived in
Houston their entire adult lives.   Ralph and Alice grew up during
the Depression. They always tried to save something each month.
Their total assets (shown below) come to $190,000. Their countable
assets, total $120,000 (remember the home is exempt):




     Savings Account__________$35,000

     CD’s_____________________$65,000

     Money Market Account_____$17,000

     Checking Account_________$ 3,000
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     Residence (no mortgage)__$70,000

     Four weeks ago Ralph and Alice celebrated their 51st wedding
anniversary. Two weeks ago, Ralph, who has Alzheimer’s, wandered
away from home. The police found him, hours later, sitting on a
street curb and talking incoherently. They took him to a
hospital. The doctor is telling Alice she needs to place him in a
Nursing Home for his protection and her health.

     Ralph gets a monthly Social Security check of $800. Alice
gets $300. “Paying $4,200 to the nursing home every month, I
will be broke in 28 months!” she tells us. “And my expenses don’t
stop because Ralph is in the home. How can I survive?”

     “A neighbor told me, I have to turn all of Ralph’s social
security check over to the nursing home”, she continued. “Is that
true?”

     We have good news for Alice. It’s possible she will get to
keep everything, all of their assets and all of the income, and
still have Medicaid pay Ralph’s nursing home costs. It may take a
little while but the end result is well worth it.

     To apply for Medicaid, Alice must contact the Texas
Department of Aging and Disability (DADS). It is not the
responsibility of the DADS to tell her how to protect her assets.

     Texas law provides several ways she can keep their entire
savings. One approach allows her to keep not only 100% of their
assets, but all the combined income, as well. However, she must
proceed correctly. If done correctly Medicaid will pay for all of
Ralph’s medicines and nursing home costs.




     Alice will have to get advice from someone who knows how to
navigate the system. With proper advice, she’ll be able to avoid
“spending down” and keep everything she and Ralph have worked so
hard for.
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     This is just one of the solutions made possible by the
Medicare Catastrophic Cost Act of 1988. The law today does not
intend to impoverish one spouse because the other needs care in a
nursing home. You can see from this one example that knowing how
to apply the rules can be used to resolve Alice’s dilemma.

     What constitutes suitable Medicaid planning differs from
family to family. It is based on current state law and the
relevant facts and circumstances of each situation. For example,
some children never gain independence – they remain dependent on
their parents. What can be done in such a case?



                 A Trust for a Disabled Child
     Margaret and Sam have always taken care of their daughter
Elizabeth. She is 45, has never worked, and has never left home.
She is “developmentally disabled” and receives Supplemental
Security Income (SSI). Who would take care of her after they die
has always been a big worry for them. Some years ago, Sam was
diagnosed with dementia. His health has deteriorated to the point
that Margaret can no longer take care of him. Several months ago,
she placed Sam in a nursing home. She removes $4,000 a month out
of savings to pay the nursing home. Margaret can’t sleep at night
worrying that there will not be any money left to care for
Elizabeth.

     Margaret is satisfied with the nursing home that Sam is in
and it has a Medicaid bed available for Sam. If he were eligible,
Medicaid would pay his bill. However, according to the
information she got from the Medicaid worker, Sam is $58,000 away
from Medicaid eligibility. Margaret wishes there was a way to
save the $58,000 for Elizabeth after she and Sam were gone. There
is.

     Margaret can consult an Elder Law attorney and set up a
“special needs trust” with the $58,000 to provide for Elizabeth.
As soon as she does, Sam will be Medicaid eligible. Margaret no
longer has to worry about paying Sam’s bill or be concerned that
Elizabeth would lose her benefits.
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     Of course, all trusts must be reviewed for compliance with
Medicaid rules so the attorney who drafts the trust must be
knowledgeable about Medicaid’s regulation in this regard.



                      Some Common Questions
Why can’t I just give my assets away?

     Giving away assets could be a useful strategy, but only if
it’s done just right. The law severely penalizes people who give
away their assets to create Medicaid eligibility. In Texas, every
$3,725 given away during the five years prior to a Medicaid
application creates a one-month period of ineligibility. A gift
of $12,000, for example, creates a 3-month penalty.

But I thought I could Give Away $12,000 Per Year!

     You may have heard of the federal gift tax provision that
allows you to give away $10,000 per year without paying any gift
taxes (this limit has recently been raised to $11,000). Many folks
believe this is an absolute right that supersedes Medicaid gifting
rules. It does not. All gifts and transfers must comply with
Medicaid’s strict rules.

     The Federal Gift Tax law allows a gift of up to $12,000 per
year per recipient without having to file a state tax return.
However, under Medicaid rules those gifts could result in
ineligibility for a number of months.

I’ve added my children’s names to our bank accounts.          Do they
still count?

     Yes. The entire amount is counted except to the extent you
can prove the other account holder contributed some or all of the
money. This rule applies to cash assets such as:

                Savings and checking accounts.

                Credit union accounts.
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                Certificates of deposits.




                U.S. savings bonds

     Some parents understandably want to make gifts to their
children before their life savings have vanished. Let’s see how
that might work.



                 Financial Gifts to Children
     After her 73-year-old husband, Harold, suffered a paralyzing
stroke, Mildred and her daughter Joan sought the advice of an
Elder Law attorney. Dark circles had formed under Mildred’s eyes.
Her hair is uncombed and she is frightened. During the entire
meeting Joan holds her hand.

     “The doctor says Harold needs long term care in a nursing
home.” Mildred begins, “ I have some money in savings, but not
enough. I don’t want to lose my house and all of our hard earned
money. I don’t know what to do.”

     Joan heard about Medicaid benefits for nursing homes, but she
doesn’t want her mother left destitute in order for Harold to
qualify for them.   She wants her father’s medical needs met, but
she also wants to preserve assets for Mildred.

     “Can Mom just give me her money as a gift?” she asks. “Can’t
she give away $11,000? I could keep the money for her so she
doesn’t lose it when Dad applies for Medicaid.”

     Joan has confused federal Gift Tax law with the issue of
transfers and Medicaid eligibility. A “gift” to a child in this
case is actually a transfer. Medicaid has very specific rules
about transfers. With few exceptions, the state won’t let you just
give away your money or your property so you can qualify for
Medicaid.
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     At the time Harold applies for Medicaid, the state will “look
back” at least three years to see if any gifts have been made.
Any gifts or transfers for less than fair market value that are
uncovered in the look-back period will delay Harold’s eligibility
for Medicaid.




     For example, three $12,000 gifts made during the three prior
years to a Medicaid application could create a 10-month
ineligibility period in Texas.

     So what can Harold and Mildred do?

     They can institute a Medicaid Estate Preservation plan, save
a good portion of their estate, and still qualify for Medicaid.
The plan may involve gifts. Or Harold and Mildred might take
advantage of the Spousal Impoverishment Guidelines. If used,
gifts must not violate Medicaid rules and must comply with Federal
reporting laws.

     But remember, when it’s given away, it’s given away!

     To set up a plan that complies with the law and achieves your
goals you should consult a knowledgeable advisor. Generally, when
properly handled, you can often save as much as one half of your
assets. Sometimes, even more.

Will I Lose My Home?

     For many Texas elderly, the home constitutes much or most of
their life savings. Often, it’s the only asset that a person has
to pass on to his or her children.

     Under Medicaid regulations, the home is an exempt asset and
is not taken into account when calculating eligibility for
Medicaid. A nursing home resident can own a home and receive
Medicaid benefits without having to sell the home. But, upon
death, the state may make a claim against the value of the home in
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order to recover the cost of Medicaid payments that were made.
With planning, the effect of “Estate Recovery” can be managed or
avoided.

     Prior to March 2005 Texas did not seek to recover the amounts
paid to a Medicaid recipient from his or her estate. That changed
when the governor signed into law a statute requiring the state
Medicaid agency to comply with the Federal “Estate Recovery” rule.

     How you protect your home depends on a number of factors,
including whether the patient is single or married. The best way
to protect your home for your family is with assistance from an
Elder Law attorney knowledgeable about these rules.




     The elderly and their family members face a number of unique
legal issues. As you can tell from our discussion of the Medicaid
program, the legal, financial, and care planning issues facing the
prospective nursing home resident and family can be complex,
confusing and frustrating.

     If you or a family member needs nursing home care, expert
legal help can protect your life savings, reduce your worries and
give you peace of mind.



        Where can you turn for that legal help?
     It is difficult for the consumer to be able to identify
lawyers who have the training and experience required to provide
skilled and, knowledgeable guidance during this most difficult
time.

     Typically, Elder Law attorneys provide nursing home planning
and Medicaid planning services. You should be cautious in
choosing a lawyer and carefully investigate the lawyer’s
credentials.
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       How do you find a law office that has the
           knowledge and experience you need?
     You may want to start with recommendations from friends who
have received professional help with nursing home issues. Who did
they use? Were they satisfied with the services they received?
Hospital social workers, Alzheimer’s and other support groups,
accountants, and other financial professionals can be good sources
of recommendations, as well.



               4 Questions To Ask An Attorney
What percentage of his or her practice involves nursing home
planning?

     You can expect a lawyer who devotes a substantial part of his
or her practice to nursing home planning to be better equipped to
address the complex issues involved.



How many new nursing home planning cases does the law office
handles each month?

     There is no correct answer. A law office that assists with
two nursing home placements a week is likely to be more up-to-date
and knowledgeable than an office that helps with two placements a
year.

Is the lawyer a member of any Elder Law planning organizations?

     The leading national organization of Elder Law attorneys is
the National Academy of Elder Law Attorneys (NAELA), 1604 North
Country Club Road, Tucson, Arizona. Membership in the academy is
open to any lawyer. Mere membership is no sure sign that the
attorney is an experienced Elder Law Practitioner. Membership does
demonstrate that the lawyer has some interest in the field. You
may want to look for an attorney who is a member of the NAELA and
regularly attends its educational sessions.
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     In the end follow your instincts and choose an attorney who
knows this area of the law, who is committed to helping others,
and who will listen to you and the unique wants and needs of you
and your family.




        Mulder & Freedman, P.C. is a Houston, Texas based law firm that emphasizes
                      Elder Law, Medicaid Planning and Estate Planning.
                                               
 James C. Mulder is Board Certified in Estate Planning and Probate Law, as well as Tax Law, by
                          The Texas Board of Legal Specialization.

                                              
Robert M. Freedman is a member in good standing of the National Academy of Elder Law Attorneys.

                                               
    Unless noted, not certified by Texas Board of Legal Specialization. The Texas Board of Legal
Specialization has made no designation for a Certificate of Special Competence in the area of
Elder Law.
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    Disclaimer: This publication is not intended for use as a source of legal or accounting advice.
Medicaid rules are complex. Results are highly fact specific. This booklet addresses general rules
provided by statute, regulation or otherwise. It does not address all facts that might affect the
application of these general rules. This information is subject to change at any time by various
government agencies. All readers should retain counsel competent in Medicaid issues to determine
how state and federal laws, regulations and policy apply to their particular situation.

								
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