Posts Tagged ‘Medicaid’

Advocates Say Proposed Cuts to Medicaid Will Harm Seniors and People with Disabilities

Tuesday, July 11th, 2017

Health care legislation currently being considered by Congress includes steep cuts to the Medicaid program, which advocates for seniors and people with disabilities say will cause tremendous harm.

The U.S. House of Representatives passed its version of the legislation, the American Health Care Act, on May 4, 2017. The U.S. Senate is now considering its amended version, which is called the Better Care Reconciliation Act (BCRA). The bill is a move by Republican lawmakers to repeal major parts of the Affordable Care Act, passed under President Obama.

The nonpartisan Congressional Budget Office said that under the BCRA, the number of uninsured people would increase by 15 million next year, and by 22 million by 2026.

Critics have numerous objections to the bill, but advocates for seniors and people with disabilities have focused on the harm they say will be caused by cuts to Medicaid, the joint federal and state program that insures nearly one in five Americans.

The Affordable Care Act expanded eligibility for Medicaid, though states could opt out. The BCRA would phase out that expansion by 2024, and would make further cuts as well, by permanently restructuring the program. Medicaid is a partnership between the federal government and the states, and the new legislation would cap the amount contributed by the federal budget, leaving states to make up the difference or cut benefits.

Medicaid is the nation’s largest government health care program, covering more people than Medicare. Medicaid covers 64 percent of all nursing home residents, 60 percent of all children with disabilities, 30 percent of all adults with disabilities, 76 percent of poor children and 49 percent of all births.

Some nursing home residents could be forced out by the cuts. Under federal law, state Medicaid programs must cover nursing home care, but the Center for Medicare Advocacy predicted that under the budgetary pressures that would be imposed under the BCRA, states would have to limit how much they pay, or restrict eligibility. The AARP said that under the new legislation, older adults could also be charged up to five times more for health insurance than younger people. Under the Affordable Care Act, rates are capped at three times more.

People with disabilities say that cuts to Medicaid would be devastating, likely resulting in reduced access to home and community-based services that allow many to live independently rather than in institutions.

The BCRA is opposed by the Arc, the AARP, the American Hospital Association, the American Medical Association and the American Cancer Society’s action network.

Concerned citizens can contact their representatives in Congress by calling the U.S. Capitol switchboard at 202-224-3121.


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Assets Can Be Spent Down Safely to Qualify for Medicaid

Friday, October 17th, 2014

Many seniors have to rely on Medicaid to pay the high cost of care in a skilled nursing facility. However, Medicaid is a needs-based program, which means that one must meet certain income and asset limits in order to qualify. Many seniors therefore find themselves needing to “spend down” their assets to become eligible, which can significantly affect their estate plans. Seniors cannot simply give assets to family members in order to qualify, as such transfers during Medicaid’s five-year “look back” period will trigger penalties.

By planning well ahead, many families are able to avoid the spend-down issue by purchasing long-term care insurance or transferring assets early enough that they are not affected by the look-back period. However, those who are in immediate need of long-term care do not have the luxury of protecting their assets in advance, and must focus on spending down assets in a way that enables them to qualify for Medicaid.

Certain “non-countable” assets do not have to be spent down or sold in order to qualify for Medicaid, including the home, a vehicle, household goods, personal effects, some prepaid funeral arrangements, and a limited amount of cash. In most states, therefore, one can safely spend down savings by using them to pay for non-countable assets. This may include paying off a mortgage or buying a new home, making repairs to a home, replacing home furnishings, replacing an old vehicle, or prepaying funeral expenses. In most cases, one may also pay off any legitimate debt, such as credit card debt.

In addition, most states permit a Medicaid applicant to make qualified payments for caregiving services in the home, when this helps the person stay at home and avoid nursing home costs. The caregiver who accepts such payments may be a family member, provided there is a written agreement and the caregiving services are not prepaid.

Medicaid rules can be complex, and they vary from state to state, so consultation with an experienced elder law or estate planning attorney is highly recommended.


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Understanding Palliative Care

Monday, December 30th, 2013

Palliative care is a branch of medicine devoted to improving quality of life for people diagnosed with serious illnesses. Receiving such care can make a huge difference in patients’ lives, but many people do not know that it exists, or confuse it with hospice care. One of the hurdles to overcome in making this relatively new specialty more widely available is helping people understand when it is appropriate and why it is so important.

Palliative care focuses on providing relief from the pain, stress and other symptoms of serious illnesses. Hospice care is a type of palliative care that focuses on people who are dying. However, palliative care is also appropriate for patients who are continuing treatment for their illnesses and are expected to live much longer or even recover.

In hospitals and other settings where palliative care is provided, it is delivered by a team of doctors, nurses and specialists to provide additional support beyond that provided by the patient’s primary treatment team. A palliative care team may assist patients with cancer, cardiac or pulmonary disease, Alzheimer’s Parkinson’s, ALS or other illnesses. The team concentrates on addressing symptoms such as pain, fatigue, nausea and depression, improving patients’ ability to endure necessary medical treatments and bettering their quality of life.

Pain relief is often a major focus of palliative care. Patients who have serious illnesses or are recovering from major surgery may suffer from debilitating pain, and both doctor and patient may be wary of opioid use because of the danger of dependence. However, pain relief is an important part of treatment, and a palliative care team can help a patient find the best way to relieve suffering.

Relief from pain is not the only aspect of palliative care. It also includes more general help with quality of life issues such as accessing community services, living comfortably at home and obtaining medical and personal care services that a person with a serious illness may need.

The use of palliative care results in fewer emergency room trips and lower medical costs, in addition to making life more enjoyable for patients and improving prospects for recovery. Advocates for palliative care want the services to become universally available in hospitals, nursing homes and assisted living facilities, but there is much road to travel before that goal is reached. This type of treatment was first defined as a medical specialty in 2007, and many doctors are unfamiliar with it. Doctors who are untrained in palliative care may – like much of the public – equate it with hospice care, and therefore not request it for some patients who may need it.

Palliative care is available at most large hospitals in the United States, but patients may have to request it. Depending on the patient’s reason for seeing a doctor, palliative care may be covered by private insurance, Medicare and Medicaid. Patients who would benefit from palliative care, and their families, should advocate for the patient and request the services they need.

When Medicare Covers Nursing Home Care

Tuesday, May 28th, 2013

Many Americans of various income levels expect to make use of Medicare for health care costs after age 65. However, it is important to note that Medicare does not pay for care at a nursing facility except in certain circumstances.

First, let’s review what Medicare does cover. Medicare Part A covers care in a hospital and Part B covers outpatient services. For these benefits, there is a choice between traditional Medicare or a network plan, Medicare Part C or Medicare Advantage, in which the government pays for private coverage. Finally, Medicare Part D covers outpatient prescription medications.

So where does nursing home care fit in? Nursing home care is only covered for a limited time if it is necessary after a hospital stay. If a patient is hospitalized for three consecutive days or more and is then admitted to a nursing home within 30 days and a doctor certifies that the patient needs care that can only be provided on an inpatient basis at a nursing facility, then Medicare will cover a stay of up to 100 days. Only facilities approved by the Centers for Medicare and Medicaid Services (CMS) can be covered. If the stay lasts longer than 100 days, then patients are expected to pay for the care out-of-pocket until the point that they become eligible for Medicaid.

The rules above are confusing enough, but their interpretation can get even more complicated. Some families have been denied Medicare coverage for a nursing home stay because the hospital deemed their stay an “observation” rather than an “admission.” In other cases, because a hospital day is usually measured as midnight-to-midnight, patients may believe they have been in the hospital for three days, but find that the hospital measures their stay as less than three days.

To monitor Medicare charges, CMS employs private contractors who receive contingency fees based on the overcharges that they discover, so they are motivated to deny coverage whenever they can.

For a doctor to certify that treatment in a skilled nursing facility is required, the patient must need rehabilitation services for at least five days a week, or skilled services for seven days a week. Services such as, for instance, tube feedings would qualify for nursing home admission. Other services, such as rehabilitation services that could be given 3 or 4 times a week on an outpatient basis, would not be covered.

Even if Medicare covers a nursing home stay, there is only full coverage for the first 20 days. After that, a co-payment is required. These co-payments, and the cost of a nursing home after 100 days, may be covered by Medicare supplemental insurance, if the patient has such insurance and submits a claim.

Many middle-class families, facing the prospect of seeing an older loved one’s life savings consumed by nursing home costs, are turning to trust planning to protect their assets while still allowing them to be eligible for Medicaid. An elder law or estate planning attorney can create a trust for an older person to transfer assets, thus reducing the person’s wealth level enough to become eligible for Medicaid. Another strategy for dealing with nursing home and other long-term health care costs is long-term care insurance. With proper planning, families can manage the costs of a stay in a nursing home.


Medicaid and Long Term Care Planning

Monday, February 11th, 2013

Medicaid planning has always been a complex area of the law, and it has become even more complex recently as the government continues to tighten eligibility requirements as a result of ballooning federal and state deficits.  Medicaid is a jointly-funded federal and state program.  The federal government oversees the Medicaid program, but the program is administered by the states.  Rules can vary from state to state, and that is why New York’s Medicaid laws are different from New Jersey’s and Connecticut’s laws.  Although the states have broad latitude in how they interpret the federal guidelines, they must not stray too far or they risk losing federal funding.

Generally, individuals become eligible for Medicaid assistance once their assets are below a certain level; in New York that level is $14,400.  While this may not seem like a lot of money, it is the highest resource amount in the nation.  In addition, there are special protections for married couples, so that the spouse living at home (the community spouse) has sufficient funds to meet his or her needs.  In 2013, the community spouse resource allowance is $115,920.  This amount may be increased under appropriate circumstances through various legal techniques.  In order to discourage people from giving away their money in order to qualify for Medicaid, there are rules in effect to limit asset transfers to children and other persons.  Those rules continue to get tougher.

The Medicaid look-back period has increased from 2 years to 5 years over time.  There is even a bill in Congress to increase the look-back period to 10 years.  What this means is that under current law if a person transfers assets, and applies for Medicaid within five years of making the transfer (the look-back period), then the person would be assessed a penalty period based on, among other things, the amount of the transfer.  Of course, as with any rule, there are always exceptions and ways to make the rules work in your favor.  However, use extreme caution when navigating these waters.  These rules could potentially cover gifts to grandchildren to help pay for their education or gifts to children to help them pay for medical expenses.

Certified Elder law attorneys are using strategies like irrevocable income-only trusts to assist clients with long-term care planning. Since the five-year look-back period applies to both outright transfers and transfers to trusts, trusts should be given careful consideration as a planning tool.  Trusts provide more flexibility and more security for the senior than an outright transfer to a child.   In addition, trusts offer tax advantages when compared to an outright gift.  Another planning technique might be to purchase long-term care insurance to cover the cost of care during the look-back period, in case the senior needs long-term care within five years after the transfer to the trust.

It is never too late to consult with a certified elder law attorney, even if a loved one is already in a nursing home or about to go into one.  Through the use of promissory notes or other legal strategies, a significant portion of the family savings can be preserved.

Although the elder law and Medicaid planning landscape continues to evolve, planning opportunities remain to protect your assets.  As always, the earlier you plan ahead, the more assets that can be protected for you and your family.

Elder Law Attorney Bernard A. Krooks to Speak at Heckerling Institute

Monday, January 7th, 2013

White Plains, New York (January 10, 2013) – Bernard A. Krooks, Esq., a founding partner of Littman Krooks LLP, will be a guest speaker at the 47th Heckerling Institute on Estate Planning on January 14, 2013, at the Orlando World Center Marriott Resort and Convention Center, in Orlando, Florida.

Mr. Krooks will be speaking about the “graying” of Baby Boomers and their need for elder law services. Mr. Krooks will also discuss “Later Life Law” and how elder care attorneys can assist their clients with Medicaid options as well as other areas of elder care planning including retirement accounts, long-term care insurance and tax considerations and the use of trusts in elder law and special needs planning.

The Heckerling Institute on Estate Planning is known as the premiere U.S. conference for estate planning professionals, including attorneys, accountants, trust officers, insurance advisors and wealth management professionals. The program offers lectures and special sessions with comprehensive coverage of estate planning techniques and strategies, designed to allow attendees to customize their educational experience.

Mr. Krooks has been included among The Best Lawyers in America® for each of the last six years. He has been selected as a “New York Super Lawyer” since 2006. Krooks has received his AEP accreditation from the National Association of Estate Planners & Councils. He is a member of the Real Property, Probate & Trust Law Section and Tax Section of the American Bar Association. He is a sought-after expert on estate planning and elder law matters and has been quoted in leading publications such as The Wall Street Journal, The New York Times and Forbes, among others.

About Littman Krooks

Littman Krooks LLP provides sophisticated legal advice and the high level of expertise ordinarily associated with large law firms along with the personal attention and responsiveness of smaller firms. These ingredients, which are the cornerstone of effective representation and are necessary to a successful lawyer/client relationship, have become the foundation of the firm’s success.

Littman Krooks LLP offers legal services in several areas of law, including elder law, estate planning, special needs planning, special education advocacy, and corporate and securities. Their offices are located at 399 Knollwood Road, White Plains, New York; 655 Third Avenue, New York, New York; and 300 Westage Business Center Drive, Fishkill, New York. Visit the firm’s website at

Understanding Medicaid Rules: the Deficit Reduction Act of 2005 (DRA)

Thursday, August 23rd, 2012

Understanding Medicaid Rules: the Deficit Reduction Act of 2005 (DRA)

In previous postings, we examined the asset rules and transfer penalty rules for Medicaid, which many seniors rely on for nursing home care or, in New York, home health care.  In 2006, significant changes to the program went into effect, and we review them here.

In 2006, President George W. Bush signed the Deficit Reduction Act of 2005 (DRA), cutting approximately $40 billion from Medicaid, Medicare and other programs over five years.  The effect on Medicaid has been to tighten eligibility rules.

The primary impact of the DRA on Medicaid was to change the rules regarding the transfer penalty, which we examined in detail in a previous posting.  The DRA lengthened the “look-back” period from three years to five years, and changed the transfer penalty start date from the date of the transfer to the date an applicant enters a nursing home and would otherwise be eligible for Medicaid.

Another key change is in the application of stricter home equity limits.  In New York, Medicaid applicants cannot have more than $786,000 of equity in their homes, unless a spouse or other dependent relative resides there.

The DRA also affects certain estate planning tools that some Medicaid applicants have found useful.  The rules have been tightened on the use of annuities, promissory notes and life estates.

Annuities can provide income to nursing home residents, provided they are considered “noncountable” toward Medicaid asset limits.  To meet this requirement, they must be irrevocable, non-transferable and actuarially sound.  The DRA added a new requirement: the state must be named the remainder beneficiary, up to the amount of Medicaid benefits the applicant receives.

Prior to the passage of the DRA, a Medicaid applicant could avoid the transfer penalty by showing that a transfer of assets was not a countable gift, but a noncountable loan, by producing a promissory note or mortgage contract.  The DRA imposed restrictions on such loans: the term of the loan must not be longer than the anticipated life of the lender, deferred payments and balloon payments are not permitted, and the debt cannot be canceled upon the lender’s death.

Another strategy to avoid the transfer penalty is for the applicant to purchase a life estate in the home of another person, for instance a child.  This is still permitted, but the applicant must actually reside in the home for at least one year.

These estate planning tools can still be useful to Medicaid applicants, but they require the assistance of a qualified estate planning attorney.

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The Supreme Court’s Affordable Care Act Ruling is Good for Senior Citizens

Thursday, July 5th, 2012

The U.S. Supreme Court case Florida v. Department of Health and Human Services, which challenged the constitutionality of the Patient Protection and Affordable Care Act has been covered heavily by mainstream and online media outlets. The Court heard arguments on the case in a historical three day session March 26-28, 2012.

The U.S. Supreme Court has upheld the individual mandate and most provisions of the Affordable Care Act. A federal penalty on states not cooperating with the Medicaid expansion provision of the law was deemed unconstitutional, but Chief Justice John Roberts gave Congress a constitutional antidote with his opinion.

While most news outlets have focused on the political outcome of the Court’s decision, they have failed to cover an issue that genuinely matters to a large portion of Americans:  how the ruling affects the lives of senior citizens. Had the Court overturned the law in its entirety, senior citizens would have lost many benefits.

Under the law, Medicare recipients are entitled to a free annual physical and can receive screenings for colorectal cancer and breast cancer without paying a deductible or co-pay.

One of the most popular aspects of the health-care reform bill is the Money Follows the Person program (MFP). With MFP, Medicaid will provide funding for alternative living options for adults that require assisted living. It is with this benefit that seniors can enjoy comfortable, familiar, environments rather than being forced to live in a nursing home. New York is one of 43 states participating in the Money Follows the Person program.

The law also strengthens the Medicare Trust Fund making it solvent through 2029.

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