Archive for the ‘Medicaid Applications’ Category

Raskin & Makofsky | Experts in Elder Law, Estate Planning, Medicaid and More

Here at Raskin & Makofsky we are experts in the field of elder law. Serving the Long Island area we care about helping you with Medicaid, estate planning, wills, trust, asset protection and more. Whether you are helping an elderly loved one or getting your own affairs in order at Raskin & Makofsky we have the expertise and experience you need.

Assuring Medicare Coverage for Rehab Days

Medicare provides some coverage for residents receiving rehabilitation or physical therapy in a facility such as a nursing home. I order to qualify for this coverage, Medicare requires a 3 day hospital stay and a skilled care need. To meet the 3 day requirement, hospital days are counted only if you are actually admitted to the hospital as an inpatient. If you are in the hospital for observation or as an outpatient, the days do not count.

In addition to the 3 day hospital stay, Medicare requires that the rehabilitation begin within a short time, generally 30 days, of leaving the hospital. Medicare will cover a stay for rehabilitation for up to 20 days in full and all but $148 co-pay (2013 figure) for the next 80 days for a maximum of 100 days of coverage. The co-pay is covered by some Medicare Supplement plans. You will be billed the co-pay if you are not covered by a plan. The coverage is terminated prior to the 100 days if it is determined that the rehabilitation efforts are not providing any benefit. Please note that Medicare plans other than direct Medicare coverage, such as HMO’s, may have different requirements.

There are currently legislative efforts to change the 3 day hospital stay to include outpatient and observation days.

2013 Medicaid Eligibility Figures

New Medicaid Eligibility Criteria

The new Medicaid eligibility criteria for 2013 were recently announced. A Medicaid applicant/recipient is eligible with available resources of $14,400 up from $14,250 in 2012. Residences and retirement funds continue to be protected in certain circumstances under the new eligibility criteria. A spouse in the community who has an ill spouse in a nursing home or the Lombardi program may retain assets ranging between $74,820 and $115,920 and income of $2,898. The actual amount is determined by the value of the couple’s combined resources. Some community spouses may successfully argue for an even higher income or resource allowance.

If assets are gifted by the applicant or spouse within 5 years of seeking Medicaid nursing home benefits, a period of ineligibility will result if the gift is not exempt. In 2013, the value of the gift is divided by $12,034 in Nassau and Suffolk counties and $11,350 in New York City to determine the length of the period in which the applicant will be ineligible for Medicaid benefits. There is a proposal to extend the look back period to ten years. It may be a reason to consider making a plan sooner than later.
Penalty periods are not imposed on those who apply for Medicaid benefits at home. However if the home care recipient later requires nursing home care the prior gifts are an issue. Considerable planning can be done to address this concern.
New Medicaid Eligibility Criteria

 

No Expanded Estate Recovery!

We  blogged recently about the status of the legislation in New York expanding the definition of “estate” for Medicaid recovery purposes. This legislation would enable Medicaid to recover its costs from assets including those jointly held, life estates and even possibly retirement accounts.

We are very happy to report that the Governor and the Legislature have agreed to repeal the legislation expanding estate recovery.  They have also rejected a proposal to eliminate spousal refusal.

Medicaid recipients and future Medicaid applicants will benefit greatly from this repeal of expanded estate recovery and the continuation of spousal refusal.

2012 Medicaid Income and Resource Allowances

Medicaid income and resource allowances for eligibility change every year. The  numbers effective January 1, 2012 are:

Nursing home resource allowances

Applicant: $14,250

Applicant’s spouse in the community: $74,820-$113,640

Nursing home income allowances

Resident: $50 (plus cost of health insurance, if any)

Spouse in the community: $2,841

Community Medicaid resource allowances

Single care recipient: $14,250

Married care recipient: $20,850 (this includes resources for both spouses)

Community Medicaid income allowances

Single care recipient: $792 (plus $20 if over age 65

Married care recipient: $1,159 (including spouse’s income)

Anyone considering a Medicaid application whose income and or resources exceed these figures should consult a knowledgeable attorney.  There are many opportunities to achieve Medicaid eligibility when these allowance are exceeded.

A Retained Life Estate May No Longer Avoid Medicaid Recovery

A retained life estate is itemized in new Medicaid law and regulations as a type of non-probate asset now included in the definition of “estate” for Medicaid recovery purposes. Therefore, a deceased Medicaid recipient’s interest in a retained life estate may now be available for Medicaid recovery on the death of the Medicaid recipient.

The potential recovery of this interest was not anticipated when many parents even years ago transferred their home by deed to a child or children and retained a life estate.  We expect that Medicaid’s legal right to recover from a life estate interest will be challenged in court in the near future. However, we do not know what the results of that litigation might be and as of now the retained life interest is a recoverable asset.

The owner of a retained life estate may have options available to protect the life estate interest.  This will depend upon the individual’s particular situation.

2011 SuperLawyers Both: Ellen G. Makofsky and Judith B. Raskin

I am honored to announce that I have been named one of the 2011 TOP 100 SuperLawyers and one of the 50 TOP WOMEN SuperLawyers in the New York Metropolitan area. This is the third consecutive year that I have received the SuperLawyers designation , second  time I have been named to the 50 Top Women Lawyers list but the first time I have been named to the Top 100 Lawyers.

Judy Raskin, my partner at Raskin & Makofsky, has also been named to the 2011 SuperLawyers list for the second consecutive year in the Elder Law category.  In fact, she is spotlighted in the SuperLawyers publication counseling other lawyers on how to create a client-friendly office.

The SuperLawyers list is created by peer nominations and recognition plus an analysis of the nominated lawyers background, credentials, experience, honors and awards. The final SuperLawyers selection represents the top 5 percent of lawyers in New York State.

We are very proud of the work we do at Raskin & Makofsky, and are honored to have both of our firm’s partners recognized in this way.

A Sea Change in Medicaid Law in NY

On April 1, 2011, New York enacted changes to its Medicaid law by significantly expanding the list of estate assets from which Medicaid can recover its costs.  This is of course a huge concern for anyone contemplating or receiving Medicaid benefits.

Prior to this new law, Medicaid could only recover its costs from assets that passed from the deceased Medicaid recipient (or in some cases the spouse’s estate) through a court proceeding. The assets would have been in the sole name of the decedent.  Assets such as jointly held accounts, accounts with named beneficiaries, life estate interests passed directly to the beneficiary. That is no longer the case under this new law.

On September 8, 2011, the NYS Department of Health promulgated emergency regulations clarifying the new law and the assets now available for recovery.  The emergency regulations define an estate for recovery purposes as those assets passing by will or intestacy as well as “any other real and personal property and other assets in which the decedent had any legal title or interest at the time of death, including such assets conveyed to a survivor, heir, or assign of the decedent through joint tenancy, tenancy in common, survivorship, life estate, living trust or other arrangement, to the extent of the decedent’s interest in the property immediately prior to death.”

The regulations allow recovery from the estate of the deceased Medicaid recipient’s interest in a retained life estate even where the deed was executed many years prior.

The emergency regulations allow recovery from irrevocable trusts to the extent the decedent had an interest in the principal of the trust or was entitled to income from the trust that was not distributed prior to death.

We are working with these changes to develop the best planning options now available for our clients.

Just in: NYS Budget Affects Medicaid Recipients

The NYS Budget for 2011 has been passed.  According to the information we just received, there is one significant change that will affect many Medicaid recipients. The budget includes a provision for a regulation which will expand the assets from which Medicaid may recover its costs on the death of a Medicaid recipient. These newly recoverable assets may include  life estates, joint accounts and revocable and irrevocable trusts. More details will follow as we get more information.

The good news, if there is any, is that according to our current understanding, this provision is the only change in the new budget affecting Medicaid applicants and recipients.

New NAELA Leadership Position

My colleagues recently elected me to the Board of Directors of the National Academy of Elder Law Attorneys (NAELA) New York Chapter at the group’s January 2011  Annual Meeting.  One of the main functions of the Chapter is to advocate and lobby for legislation which will benefit older adults and the disabled and their families.

Now is an especially auspicious time to be in a leadership position within this organization because there is much work ahead for the NAELA New York Chapter.  New York State is in the midst of a budget crunch. Governor Cuomo recently created a Medicaid Redesign Team whose purpose is to find ways to save money within the Medicaid program.  In the Governor’s 2011 proposed New York State budget he slashed $2.8 billion in spending for Medicaid programs. The likely loss of Federal matching funds will roughly double these proposed cuts to the Medicaid program.  In searching for ways to implement these cuts it is possible that spousal refusal will come under attack and that penalty periods will be proposed for those applying for Medicaid at home.

 I look forward to assisting  NAELA in advocating for the protection of those individuals who rely on the Medicaid program.  I will keep you posted on what happens next.