Turned Down for Medicaid? We Know Where Your Money Went!

If you’re reading this blog post, you probably know a little something about Medicaid. That it’s a federal program but administered by the states. That it’s a hugely expensive and cumbersome system.

Not for everyone, however! If you happen to be a Russian diplomat in New York, apparently you can milk the Medicaid system for $1.5 million.

The healthcare system was designed to help Americans who need it, including the seniors whom we represent, and who need Medicaid to help pay for nursing home or assisted living facilities. To make the behavior of the Russians even more outrageous, the article states, “While the defendants were claiming false incomes, they also spent thousands of dollars on luxury items and vacations, the complaint said. They chartered helicopters, rented limousines and purchased jewelry from Tiffany & Co.”

The thought that our clients have to jump through hoops to get the Medicaid help they so richly deserve while Russians scam that same system here in New York…well, it’s enough to make your blood boil.

Mad Men Tackles Dementia

As an avid fan of Mad Men, and an elder law attorney, the way the show dealt with one of the character’s senility brought the show right into the present.
Back in the ‘60s, so many women were stay at home mothers. When a parent, or an -in-law started needing more help, it was these wives and mothers who were expected to take care of the parent who needed assistance.
The show didn’t take the easy route. The son, Pete, and his wife had recently split up, a fact the son neglected to tell the rest of his family. Pete, as typical of his character, is dismissive of his mother and tries to pawn her off on his brother, but they knew and insisted he share the responsibility.
So, how is Pete going to handle this? I hope the show continues to deal with it— and I suspect they will. One of the more beloved characters, the ad agencies’ founder, gave a speech at the beginning of the episode that was unfocused—the partner/office manager merely patted him on the back and complimented him.

Spousal Refusal In New York — Just Say No?

First, the good news: Despite another attempt by the New York governor to eliminate spousal refusal from this year’s budget for community-based care, the budget was passed by the legislature this week without this change.

What Is Spousal Refusal, And Why Is It Important?

Let’s say your dad is in a nursing home, but your mom is well and lives at home. Medicaid will only pay for your dad’s nursing home bills if he qualifies as poor — not having enough income to privately pay for the nursing home. The problem is that Medicaid counts both your mom and dad’s income in deciding if he qualifies for assistance.

They allow your mom a certain amount of income, but anything more than that and your parents lose the Medicaid assistance.

Especially here on Long Island, this often leaves your mom — known as the “well spouse” — with not enough income or assets to cover her basic housing and other needs.

One of the techniques attorneys use to protect people like your mom is file a document with the Medicaid application that your mom refuses to contribute income and assets to your dad’s long term care: so-called “spousal refusal.” Medicaid cannot legally be denied to the spouse in need. It’s sort of like getting divorced for tax reasons — without the divorce.

The Fly in the Ointment

For the past few years, the Department of Social Services (DSS) has been threatening lawsuits to recover the cost of care from the refusing spouse. Often, DSS does not follow through, or we can come to a settlement for much less than the full amount, and even so, DSS only seeks to recover the Medicaid rate, not the private pay rate, potentially saving thousands of dollars each month.

Finally, the Bad News

Even though the legislature did not eliminate spousal refusal in this year’s budget, or last year’s, New York’s budget is under pressure. Spousal refusal is only allowed in three states, and I suspect the Governor and other legislative forces will keep trying to get this passed.

Plan for the Elimination of Spousal Refusal

While spousal refusal is an excellent tool to use right now, when my clients are in a crisis and there is an immediate need to apply for Medicaid to get help, it’s clear that this strategy has a limited shelf life. You can avoid this problem by meeting with an elder law attorney now, and planning for the future. As the old saying goes: hope for the best, and plan for the worst.

Elder Law: It’s about people, not just money.

Sometimes when attorneys talk about elder law and Medicaid planning, they get caught up in the technical details of the various rules and strategies: Medicaid planning trusts; the look-back period, spend-down plans, the half-a-loaf strategy, the penalty period, and on and on. It’s easy to forget sometimes that we’re talking about human beings — people who are impaired but who are still deeply loved by others. A video like this reminds us:

It’s Not Monopoly Money, It’s Your Hard Earned Wealth

A recent article in Forbes highlights a study that half of all people lose all their wealth after just 6 months in a nursing home.

I’m going to repeat that:  Half of all residents in a nursing home lose ALL their wealth, including their home equity, after just 6 months in a nursing home.

As a middle class Long Island resident, that is one of the most frightening statistics I have heard in a long time.  The people I know– my friends, clients and elderly neighbors, worked hard and saved hard all their lives to accumulate what they have.  They gave up vacations, manicures and Starbucks in order to save money they thought they might need when they retired.  To think it could all be wiped out in six months is a devastating thought.

We know that the cost of a nursing home is approximately $12,000- $15,000 each month on Long Island.  Many of the people surveyed had less wealth than average people their age before they entered the nursing home.  That can easily be explained in two ways.  Before people enter nursing homes, they will often spend much of their money on care–medication, doctors, home health care aides.  Even a few hours per day of hiring an aide can quickly wipe out savings.

Or it can be explained by good planning.  Perhaps the people in the study had ensured that much of their hard earned assets were safe from the bite of those huge monthly nursing home bills.  Planning for long term care is essential and must be done prior to you or your spouse becoming ill.

Medicaid: The Middle Class Safety Net

As this article in today’s New York Times points out, Medicare is getting the bulk of the attention in this election campaign, while more attention needs to be focused on the problem of Medicaid.

“Medicaid has long conjured up images of inner-city clinics jammed with poor families. Its far less-visible role is as the only safety net for millions of middle-class people whose needs for long-term care, at home or in a nursing home, outlast their resources.”

As Robyn Grant,  the director of public policy and advocacy for the National Consumer Voice for Quality Long Term Care points out “More than $80,000 a year on average for a nursing home– who can sustain that?”  On Long Island that cost is closer to $150,000 each year on average.  She continues to say “We’re forced most of us to go onto Medicaid.” People don’t realize this.

The article also suggests that some lawyers specialize in setting up trusts that shelter certain assets, and that the government has closed some loopholes that allow these trusts.

Sheltering assets through trusts is still a viable option.  The loophole is in the length of time needed to fully protect your assets.  Currently, that length of time is 5 years before your home and other liquid assets can be protected.

When Siblings Don’t Agree About Mom and Dad’s Care

Remember the fights you used to have with your brother over who got the last Ring Ding?  (Okay, maybe that was only me).

 

I’m an independent woman, an elder lawyer, no less.  Yet, when it comes to making decisions about my Mom, I turn first to my brother.  After all, my Mom is his Mom, and I don’t want to totally take charge, although it would be easy to do so. But mostly I like having someone to share the burden with.  Although I help families make decisions about their aging parents, when it comes to mine, I lean on family.

 

But what happens when you never got over that sibling rivalry?  Or when you honestly just disagree about how your parents should be cared for?

 

This article offers one solution—elder mediation.  A mediator may well be able to help siblings struggling with how to care for elderly parents and how to pay for that care.  Many elder lawyers are equipped to help work through solutions, but there are mediators in New York who specialize in elder problems.

 

George Clooney Doesn’t Have His Facts Straight about Living Wills

I wasn’t quite sure why, unlike most people, I didn’t really like The Descendants. (see this article that predicts that the movie will win the Golden Globes).  Then I saw the Wikipedia article that states “Matt learns that Elizabeth will never awaken from her coma, which means that under the terms of her living will she must be disconnected shortly from life support.” It’s a faulty premise.

I’m here to promise you that no one can be forced to disconnect your life support because your living will says so.  It’s unfair to blame the document for that sort of decision.  It was a simply an expression of Elizabeth’s wishes of how she would like her life to end.  Her doctors and the hospital would also have input into that decision.

In New York, a living will is not a legal document, it is an expression of your health care desires if you are unable to express those wishes yourself, if you are in a coma or perhaps in an advanced state of Alzheimer’s.   In New York, you should also sign a health care proxy, that nominates a person who will actually make those decisions for you.  The person you nominate to serve as your proxy can make real time decisions about real situations; not just advance decisions about hypothetical situations.  Those decisions will hopefully be framed by the wishes you expressed in your living will.

No one is “pulling the plug” because of the terms of your living will.  Don’t let fear stop you from signing the most important health care directives:  Your health care proxy, living will and power of attorney.  Even if George Clooney used to play a doctor on TV.

 

Does Size Matter?

Does the size of your brain predict the likelihood of developing Alzheimer’s disease?  One study released December 2011 in Neurology, the medical journal of the American Academy of Neurology, finds that smaller brain size has a high correlation with the risk of developing Alzheimer’s.    Technically, the researchers found that the thickness of regions of the cortex known to be vulnerable to Alzheimer’s disease.  The study was conducted among people in their mid-seventies who have not shown signs of memory loss.

 

Predicting who may be at a higher risk for the disease is important, as early detection may be an important step to slowing down or stopping the progression of memory loss and cognitive function.

 

Another marker, according to the press release, is abnormal levels of protein in cerebrospinal fluid.  For more information on this study, click here.