There’s no “income cap” anymore for Medicaid long term benefits

When I first started filing Medicaid applications for my clients back in 1995, a person who needed long-term care services in the home or assisted living but had run out of money could not even apply for Medicaid if their gross monthly income was higher than the “income cap.” Of course, the income cap was well below the amount that was needed to pay for care, which meant that a lot of people couldn’t receive necessary services. Basically it meant that many people who would have done well in a community environment with a home health aide and other support ended up moving into a nursing home, because that was the only setting where Medicaid would pay for them. Or they had to do without care or cobble together a plan in which family members took care of them.

Finally, in 2014 when the State’s Comprehensive Medicaid Waiver went into effect, the income cap was eliminated as a bar to receipt of community & assisted living services. There is a special procedure that the applicant has to use, because the income has to be funneled through a structure called a Qualified Income Trust (QIT), but at least the person can now apply for Medicaid benefits. You can read more about QIT’s in our earlier blogs.

We continue to meet people who haven’t heard this good news. If your family is struggling with how to arrange and pay for long term care, call us for legal advice regarding Medicaid eligibility that fits your specific situation.

For personalized advice about a Medicaid plan call … 732-382-6070

Feeding the Patient is Part of the Plan of Care

What can you do if your loved one can’t feed himself but the nursing home staff just keep leaving the tray on his table? The Nursing Home Reform Act Residents’ Rights 42 CFR Ä 483 requires that provision of adequate nutrition be part of the services provided to all nursing home residents. The facility must provide adequate services to “attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident, as determined by resident assessments and individual plans of care.” Dietary Services must be included in the Medicaid or medicare daily rate and cannot be billed to the patient separately, and this includes feeding. The facility must provide special equipment if that is what a resident needs to be able to feed him or herself, and in lieu of other certified staff dietary aides, a nursing home may employ a paid trained Feeding Assistants to take care of feeding certain patients who have non-complex feeding needs: ” (i) A facility must ensure that a feeding assistant provides dining assistance only for residents who have no complicated feeding problems.(ii) Complicated feeding problems include, but are not limited to, difficulty swallowing, recurrent lung aspirations, and tube or parenteral/IV feedings.”

I was responsible as legal Guardian for the care of a fellow who was confined to his bed in a nursing home for the last few months of his life due to various illnesses and weaknesses. When I would visit him, I often saw that his meal tray was on his table, the containers were opened, and spoonfuls of food were on the floor or on his bed or on himself. It was apparent that he could no longer hold his spoon. He was rapidly losing weight. The patient insisted that he could feed himself and didn’t need help, but clearly he wasn’t getting the nutrition he needed. Or he’d say he wasn’t hungry – clearly not true, as he ate eagerly when I fed him. I had a discussion with the case manager and they began assigning someone to sit with him and feed him and encourage him to eat.

The family of a nursing home resident is not responsible to feed their frail loved one. This is the facility’s legal duty. Call for a care planning meeting and address this with them if you are told that there “aren’t enough staff” or “not enough time” or “the family needs to do it” or “the patient keeps refusing.”

Call for legal advice about the rights of residents of nursing homes … 732-382-6070

Don’t count on the Medicaid representative at the County Board to remind you to Spend Down

An application for Medicaid benefits cannot be approved before the applicant (and spouse, if any) has completed the spend-down, because benefits are not payable unless the applicant is financially eligible. It is not uncommon for someone to initiate an application for Medicaid without having any idea whether they are eligible or not. The nursing home may start the process; a nonattorney representative may start the process; a hospital social worker may suggest that  they apply. They may leave the intake interview with a List of Required Documents, but not be told that they have to spend down to “X” level before the application can be processed. Sometimes, months go by and the hapless applicant is running up nursing home bills without actually being Medicaid eligible because they didn’t “spend down.”

Despite the fact that the regulations of the State Medicaid Manual  at N.J.A.C. 10:71-2.2(c) specifically obligate the County Welfare Board to assist the applicant in this process, all government agencies are reticent to provide advisory opinions on what measures will comply with a program’s rules. There may be substantial opportunities to shelter assets for the family, but the CWA cannot be counted on to provide that sort of advice. Also, given the huge volume of cases, there may be many procedural tangles that prevent the applicant from receiving necessary advice through the CWA. Unfortunately, if the applicant sits back and waits for guidance, they may discover that they and their spouse are incurring tremendous financial obligations that they have no good way to pay.

The spend-down may be a combination of expenditures, exempt transfers and replacement of existing assets. The math is precise and until the spend-down is completed, there can be no eligibility. By getting individual legal advice early in the process, an applicant can take advantage of the opportunities that the rules provide to protect his family and achieve eligibility at the soonest possible time.

Call for representation regarding Medicaid eligibility spend down planning …. 732-382-6070

Watch out for Transfer Inheritance Tax when you do your estate planning

Most of the publicity in the news concerning changes to New Jersey’s “death tax” has focused on its raising of the estate tax thresholds. Now, if a person dies and has less than two million dollars in his or her estate, there will be no estate tax regardless of who is receiving that bounty. Not so for the Transfer Inheritance tax, which is based on the relationship of the recipient to the deceased person.  Inheritance by a lineal ancestor or descendant — parent, child, grandchild, even a step-child — incurs no inheritance tax. Same goes for inheritance by the spouse. All of these people are considered to be “Class A Beneficiaries.” However, tax will be imposed to some extent on inheritance by others — brothers & sisters (“Class C”), nieces, nephews, cousins, friends, aunts, uncles, and even the grandchildren of step-children (“Class D”). This means that careful planning must be done.

To avoid delays in estate administration, the executor may need cash to pay the inheritance tax when some of the folks inheriting under a Will or through a non-probate arrangement such as a Pay on Death account are not Class A beneficiaries. If all of the assets are tied up in a non-probate format [either/or accounts, joint accounts, pay on death, or other beneficiary designations) this will cause obvious problems. Delay in payment of tax can cause interest and penalties to accrue. The recipient of the “joint” account may not cooperate to provide cash to the estate for the tax.

If the non-Class A recipient is receiving his/her inheritance pursuant to the Will, the Will should specify whether the tax is to be drawn out of that bequest or should be just rolled into the taxes and expenses that are paid from the residue of the estate. Precise drafting of the Will is so important, so that the intentions of the deceased are known.  We always say that “careful planning can prevent a crisis,” and careful drafting can avoid time, expense, and battles when it comes to estate administration.

Call for advice concerning estate planning and estate administration ….

732-382-6070

The Landscape has changed for Guardianship in New Jersey

Procedures for filing for Guardianship are changing in New Jersey as a result of amendments to the Court rules that were effective 9-1-2016. The Rules are at N.J.R. 4:86-1 to 4:86-10. Guardianship petitions now must be initiated using a specific set of forms that have been prepared by the Administrative Office of the Courts.  A Guardianship Monitoring Program is being established in each county. After the pleadings are filed, the petitioner must complete a mandatory guardianship training program before the court hearing date, which includes watching a certain video about the Guardian’s many duties and responsibilities.  The alleged incapacitated person must attend the hearing unless his/her court appointed attorney and the petitioner’s attorney both certify  that s/he would be unable to attend due to physical or mental incapacity. Once the Judgment is entered, the Guardian must qualify as Guardian within thirty days. The physicians’ reports must specifically delineate the areas of functional decision-making in which the individual retains capacity.

There continue to be thorny legal issues that will come up in these cases.  Whether planning the care for a senior or a young person with disabilities, The law is bending towards limited guardianship, and sometimes it isn’t patently obvious that the individual lacks capacity in all respects. If the person who seeks to become guardian cannot be bonded due to their own prior financial difficulties or lack of personal resources, there may be a need to find somebody else to serve as guardian. The petitioner may need to obtain court permission for sale of real estate, or for placement of a mortgage on the property to pay off debt or support the individual in his/her home. The petitioner may wish to get court authorization for Medicaid eligibility planning including transfer of assets to spouse or other family members. The Verified Complaint, Order for Hearing, Physicians’ Certifications and Judgment are in a format that requires careful reading and additional legal drafting, in order to be sure that everything the petitioner knows and everything the petitioner seeks can be reflected in the forms that are submitted to the County Surrogate.

Call us for advice and representation in guardianship matters …732-382-6070