Spousal Impoverishment Protections in Medicaid Home Care Program Help All Ages

NAELA has been at the forefront of keeping the Spousal Impoverishment Protections in the Medicaid Home Care Program (HCBS) that were included in the Affordable Care Act.  So far, with great effort, it’s working.

It’s important for disabled people who are under 65 and who meet the nursing facility level of care to recognize that these protections are out there. The “level of care” standard is generally thought of as needing assistance with three of six of the basic ADL’s, called activities of daily living. The disability community worries a lot about the “marriage penalty” in SSI, and this is a real and legitimate concern.  But in New Jersey, if it’s homecare that’s preeminent, marrying your significant other should not necessarily prevent you from keeping your Medicaid/MLTSS benefits.  Spouses are allowed to keep certain exempt assets, and all of their income from working and other sources, without affecting the Medicaid applicant’s eligibility.

Sometimes when a disabled person is used to being on one kind of Medicaid eligibility, they accept what their caseworker says about what they can and can’t do.  Never take what a Medicaid worker says at face value!  Speak with an elder law attorney and get that critical second opinion.  You may not even realize what creative planning options are out there!

Call for advice on Medicaid applications, asset protection and appeals ………. 732-382-6070

Creating a safe home care plan for a loved one with dementia

For many senior citizens, being able to “age in place” and stay in their  home is a really high priority. The obligation to use Medicaid dollars to support aged and disabled individuals in the least restrictive environment has been a cornerstone of federal policy since the Olmstead decision was issued by the Supreme Court in 1999.  In addition to that there is the obligation to utilize “person-centered planning” and to individually tailor the services being provided. The  New Jersey Medicaid Long Term Services and Supports (MLTSS) program which provides Home and Community based Services (HCBS) is required to develop procedures that will adequately address the needs of the individual so that he or she can be adequately supported in the community environment.

The Centers for Medicaid and Medicare Services issued an interesting “FAQ” on the subject of how to address the individual needs of a Medicaid recipient who has a tendency to “elope,” “wander” or “exit-seek.” While that FAQ is geared to program administrators and policy makers, it seems to me that it provides useful guidance to any of you who are engaged in senior care planning for someone who has this problem. For example: ” Assessing the patterns, frequency, and triggers for unsafe wandering or exit-seeking through direct observation and by talking with the person exhibiting such behaviors, and, when appropriate, their families. •Using this baseline information to develop a person-centered plan to address unsafe wandering or exit-seeking, implementing the plan, and measuring its impact. •Using periodic assessments to update information about an individual’s unsafe wandering or exit-seeking, and adjust the person-centered plan as necessary.”

What I have learned over the years from the thousands of families I have advised is that, in an organic way, they are instinctively engaged in Person-centered service planning for their loved one. They try hard to sustain the activities that the loved one enjoyed and avoid the things that the person loathed. Out of a sense of respect and honor, they try hard to incorporate what has always mattered to their parent.  Yet Elder care planning often needs to deal with new situations and behaviors that present themselves as a result of  underlying dementia. Sometimes it isn’t clear whether the behavior is willful and intentional or is just an erratic problem triggered by unpredictable things as a result of Alzheimers or other dementia. In either case, the caregiver needs to find strategies to keep the person as safe as possible.

Call us for advice on elder care planning legal issues … 732-382-6070

Medicaid annuity planning is alive and well in NJ

When a person applies for Medicaid under the NJ MLTSS program after having made gift transfers during the most recent 5 years, there will likely be a penalty period in which Medicaid will not pay for the care that this person needs (unless the transfers were exempt, such as transfers to a spouse or disabled child). This transfer penalty is mandated by federal law, and the greater the amount that was transferred, the longer the transfer penalty will be. If an applicant addresses this issue before the end of his spend-down period, there may be opportunities to protect the applicant by using some of the spend-down funds to purchase an annuity contract that can provide the income needed to pay for care during the penalty period.

The type of annuities that fit the bill are highly restricted and are not designed to maximize the rate of return the way conventional annuities might be. The reason that the technique works is because under federal and state Medicaid law, a distinction is made between “income” and “resources.” Resources must be reduced to a certain level before the person can even apply for benefits. Income, on the other hand, is usually received on a monthly basis and is turned over to the facility as a contribution towards the cost of care (with certain deductions). For the annuity plan to work, the contract cannot be countable as a “resource” as defined by Medicaid law. We had successfully litigated an IRA annuity case with the NJ Division of Medical Assistance and Health Services (DMAHS) in 2009-10 (the P.K. case) PK FAD  A few years later, after several cases were decided in out of state venues,Lopes 2nd Cir ; Carlini we successfully litigated a non-IRA annuity case against DMAHS in 2013 (the M.W. case; M.W. FAD 1-28-140001 M.W. Initial ALJ decision ) leading to confirmation that if properly structured, an annuity effectively transforms countable resources into an irrevocable stream of income. If properly done, this technique can provide protection for the Medicaid applicant as well as his/her community spouse, and can also help to assure that there is a way to pay for care during an anticipated Medicaid penalty period.

Seniors who are planning for their care have many tools in their toolbox; the question is always which tools to use and how to get the results that the senior needs.

Call us to discuss a Medicaid spend-down plan that suits your circumstances … 732-382-6070

Reduction of Home Care Hours Under Medicaid Can’t be Arbitrary

New Jersey Family Care is the Medicaid a program that provides MLTSS — Medicaid Long-Term Services and Supports. The home care program is called HCBS — Home and Community-Based Services. Once the applicant has been found eligible for Medicaid and is assigned a Medicaid case number, s/he must select a Managed Care Organization (MCO). S/he will then receive a visit from a Case Manager from the MCO, who will determine the number of hours of services which will be provided. See prior posts for more discussion about that process. This initial determination is appealable.

The case will then be reviewed periodically. Reviews are usually done done every six months, using a MCO tool that conforms with state Medicaid guidelines. The MCO has a vested interest in keeping the hours of service as low as possible, which creates a conflict with the aged person who wishes to age in place in the community, but this is balanced with the MCO’s obligation to reduce risk and prevent institutionalization. Hours cannot be arbitrarily reduced. The MCO must be able to document that there has been a change in the Medicaid participant’s condition which justifies the reduction of services, unless hours were awarded prior to MLTSS by another MCO.  Here, here and here are three good  recent examples of Final Agency Decisions in cases that involved reductions in hours.

The goal is to keep people at home and out of nursing homes.As the advocate for the Medicaid participant, you can monitor the services provided as well as the capability of the individual and whether there has been any improvement in their health condition or their ability to take care of him/herself. This will provide you with some of the ammunition needed should you be faced with a notice of reduction in hours.


Call us for advice on Medicaid eligibility, applications and appeals … 732-382-6070

Disability Integration Act of 2015 is a pending bill with great promise

Sen. Chuck Schumer (D-NY) introduced a bill in Congress that’s designed to ensure that Medicaid-eligible people who are aged or have disabilities can receive their necessary services out in the community through the Medicaid Home and Community Based Services program (HCBS). Aging in Place is what it’s all about. The bill is S-2427 and here it is. The bill has been referred to the Senate’s Committee on Health, Education, Labor, and Pensions.

Sections 2 and 3  state the problem succinctly: “(2) While Congress expected that the [Americans With Disabilities Act of 1990] ADA’s integration mandate would be interpreted in a manner that ensures that individuals who are eligible for institutional placement are able to exercise a right to community-based long-term services and supports, that expectation has not been fulfilled.  (3) The holdings of the Supreme Court in Olmstead v. L.C., 527 U.S. 581 (1999), and companion cases, have clearly articulated that individuals with disabilities have a civil right under the ADA to participate in society as equal citizens. However, many States still do not provide sufficient community-based long-term services and supports to individuals with disabilities to end segregation in institutions.”

State Medicaid Programs to date may choose the extent to which they offer home and community-based services. While the percentage of dollars being spent on HCBS has been growing, waiting lists in some states are tremendous. In New Jersey, an eligible person often has to really fight to get sufficient hours of home health aide services. ALso, in New Jersey the MLTSS Medicaid HCBS Program will not provide 24/7 home health care.   ABD_2016_Overview

Coordinating care in the community is clearly more complicated than arranging for care in a one-stop-shopping nursing home setting. There can be a need for transportation to shopping and medical appointments, prescription delivery, grocery delivery, home health aides, meals on wheels, housekeeping, and more. Nevertheless, the federal government has been promoting aging-in-place initiatives for years, such as NORC (Naturally Occurring Retirement Communities). S-2427 confirms the proposition that individuals have a RIGHT to receive their care in the least restrictive setting available, which is what Olmstead was all about.

Call us for legal advice and representation concerning Medicaid eligibility, applications and appeals … 732-382-6070