Basics of Georgia Nursing Home Medicaid Rules

There can be no doubt but that the statutes and provisions in question, involving the financing of Medicare and Medicaid, are among the most completely impenetrable texts within human experience. Indeed, one approaches them at the level of specificity herein demanded with dread, for not only are they dense reading of the most tortuous kind, but Congress also revisits the area frequently, generously cutting and pruning in the process and making any solid grasp of the matters addressed merely a passing phase.

Rehabilitation Ass’n of Virginia v. Kozlowski, 42 F.3d 1444, 1450 (4th Cir. 1994) (Ervin, Chief Judge)

THE FOLLOWING SUMMARY IS MEANT TO BE FOR GENERAL INFORMATION. DO NOT RELY UPON THE FOLLOWING FOR DEFINITIVE LEGAL ADVICE.

INTRODUCTION

For all practical purposes, in the United States the only "insurance" plan for long-term institutional care is Medicaid. Medicare only pays for approximately 7 percent of skilled nursing care in the United States. Private insurance pays for even less. The result is that most people pay out of their own pockets for long term care until they become eligible for Medicaid. While Medicare is an entitlement program, Medicaid is a form of welfare - or at least that's how it began. So to be eligible, you must become "impoverished" under the program's guidelines.

Despite the costs, there are advantages to paying privately for nursing home care. The foremost is that by paying privately an individual is more likely to gain entrance to a better quality facility. The obvious disadvantage is the expense; in Georgia, nursing home fees average $5,500 or so a month. Without proper planning nursing home residents can lose the bulk of their savings.

For most individuals, the object of long-term care planning is to protect savings (by avoiding paying them to a nursing home) while simultaneously qualifying for nursing home Medicaid benefits. This can be done within the following rules of Medicaid eligibility.

In Georgia, Medicaid is administered by the Division of Medical Assistance of the Department of Community Health (the "DCH"). Across the state, the county Departments of Family and Children Services ("DFACS") assist the DCH in Atlanta with local program management. However, in order to qualify for federal reimbursement, the state program must comply with applicable federal statutes and regulations. So the following explanation includes both Georgia and federal law as applicable.

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THE ASSET RULES

The basic rule of nursing home Medicaid eligibility is that an applicant, whether single or married, may have no more than $2,000 in "countable" assets in his or her name. If the applicant is married, the spouse is called the Community Spouse, and there are rules concerning how many countable assets the Community Spouse may keep. Those rules will be discussed further below. "Countable" assets generally include all belongings except for (1) personal possessions, such as clothing, furniture, and jewelry, (2) one motor vehicle, (3) the applicant's principal residence, and (4) assets that are considered inaccessible for one reason or another. The asset rules are quite complex.

Keep in mind, the rules discussed in this part relate to qualifying for Medicaid and have nothing to do with transferring those assets or whether those assets might be subject to estate recovery upon the death of the applicant. Those rules will be discussed in detail below.

Real Property: The Home

A home with equity of less than $500,000 (until November 1, 2007, there was no limit) will not be considered a countable asset and, therefore, will not be counted against the asset limits for Medicaid eligibility purposes as long as the nursing home resident intends to return home or his or her spouse or other dependent relatives live there. It does not matter if it does not appear likely that the nursing home resident will ever be able to return home; the intent to return home by itself preserves the property's character as the person's principal place of residence and thus as a noncountable resource.

Further, the $500,000 equity limit does not apply if the home is occupied by a spouse or other dependent relative of the applicant.

The "Home" also includes an unlimited amount of real property (subject to the $500,000 equity rule, if applicable). As a result, for all practical purposes nursing home residents do not have to sell their homes in order to qualify for Medicaid.

Do keep in mind, that while the Home does not count for Medicaid qualification purposes, it may likely be subject to estate recovery later after the death of the Medicaid applicant and his or her spouse. Estate Recovery will be discussed further below.

Real Property: Tenancies-in-Common

A tenancy-in-common is a method of holding title to real property jointly with others. The percentages need not be equal. Each "tenant in common" has an equal right to use the real property. Upon sale of the real property, the proceeds are divided according to the percentage ownership interests. Each tenancy-in-common interest can be separately sold, transferred as a gift, and passed on under a Will.

Tenancy-in-common property is countable property for purposes of Medicaid qualification, unless one of the co-owners is living on the property. The value of the applicant's portion of property is what is countable. For example, if the applicant and two others own property as tenants in common, 1/3 of the value of the property will be countable. However, it is available for estate recovery and may raise transfer issues if later transferred.

Real Property: Life Estates

These are often referred to as "life time rights" or "life rights". In this type of ownership, one owner is referred to as the Life Tenant, the other as the Remainder Interest. The Life Tenant has a current ownership interest that brings with it the exclusive right to occupy and use the premises for the rest of her life. Life Tenants are legally obligated to maintain the premises, pay the taxes and keep it insured. The Remainder Interest holder has a current ownership interest, too, in as much as he may transfer that interest at anytime. The Remainder Interest holder does not have the right to use or occupy the premises, however, until the Life Tenant has died. Once the life tenant has died, the property passes automatically to the Remainder Interests and free of liens the Life Tenant may have added to the property after the life tenancy was created.

Life Estates are an unsettled and confusing area of Georgia Medicaid law. Clearly, Life Estates are not countable property; however (and this is important), the purchase of the life estate will be a penalized transfer if the purchaser did not live in the residence for at least 12 months.

Life estates also have the added feature of not being available for estate recovery upon the death of the Life Tenant. The rules clearly say that a life estate IS subject to estate recovery, but Life Estates have, for centuries, passed free of liens and encumbrances placed on the property by the life tenant. Although DCH says Life Estates are subject to Estate Recovery, no one has demonstrated how, in Georgia, it would be done.

Real Property: Joint Tenancies

Join tenancies in real property are somewhat similar to tenancies-in-common. As long as the joint tenancy exists, if a joint tenant dies, the surviving joint tenant or tenants take the deceased tenant's interests automatically (in this way, a joint tenancy is similar to a life estate). Because of that feature, joint tenancy property might escape estate recovery (we will not guarantee there wouldn't be a fight over it).

Personal Property: Household and Personal Effects

Household furnishings, clothing, jewelry and other personal effects used by an applicant and spouse as such are non-countable. For example, clothing and furniture regularly used by an applicant or spouse will not count; clothing and furniture in a storage area (perhaps from a discontinued business) will count.

Personal Property: Automobiles

One automobile used to transport the applicant or a spouse is noncountable. The Medicaid manual instructs the caseworker to assume that is the case unless there is evidence to the contrary. If the applicant and a spouse own more than one automobile, then the most valuable auto does not count, but other autos will be countable (this includes RVs).

Personal Property: Insurance

For purposes of Medicaid, two types of insurance are relevant: One type has no cash value or buildup (commonly called term insurance), the other type does have some sort of cash value or buildup (and comes under a variety of headings such as "whole" or "universal" or "variable" . . . the cash value is what is important for Medicaid purposes). Examine all life insurance policies.

If the total face value of all insurance policies exceeds $10,000, the cash value of all owned policies is countable (unless the policy is excluded as a burial asset . . . see below).

Example: Maude owns two whole life policies, and a term life insurance policy. One whole life policy has a face value of $3,000 and a cash value of $500; the other has a face value of $4,000 and a cash value of $2,500. The term insurance has a face value of $2,000. The total of the face values of the policies is $9,000, and the life insurance policies (and cash values) are excluded as resources.

Instead say Maude owns a $4,000 face value term insurance policy in addition to the whole life policies. Because the face values now total more than $10,000 ($11,000), the $3,000 total cash value will count.

Maude may wish to cancel the term policy or designate it toward a burial exclusion. She must take care, however, not to transfer the policy, because it will trigger a transfer policy based on the face value (even though the policy is a term policy).

Personal Property: Burial Contracts and Assets

An applicant and spouse are each allowed up to $10,000 for burial purposes. Burial space items (for example cemetery plots, caskets, urns, and the like) owned by an applicant and spouse are not countable toward this or any other limit.

The equity value of any funeral contract (less amounts representing burial space items) counts toward the $10,000 limit.

For those who have not met the $10,000 limit, excess insurance policies (starting with term policies) and other countable resources may be designated toward the $10,000 per spouse limit.

As with other Medicaid rules, the burial asset rules are extremely complicated.

Personal Property: Retirement Plans/IRAs

IRAs and qualified retirement funds belonging to a spouse of an applicant are not countable assets. A rare piece of good news. Further, IRAs and qualified retirement funds belonging to the applicant are not countable assets if the applicant is receiving distributions "at some regular interval" and the distributions include some principal. Also, an IRA that is paying a fixed, irrevocable annuity stream may not count as an asset. Other retirement funds and IRAs, however, are countable. The fact that accessing them may cause unpleasant tax consequences or surrender charges is irrelevant.

Personal Property: Annuities

DRA made a number of very important changes in this area. Prior to November 1, 2008, DCH took the erroneous position that virtually any annuity (other than an annuity held as a tax-qualified annuity, perhaps purchased with funds rolled over from a qualified retirement plan) would be a countable asset. This position was directly contrary to the provisions of the Deficit Reduction Act of 2005.

On November 1, 2008, DCH issued a change to the Medicaid manual that brought Georgia's treatment of annuities in line with federal law. Effective February 1, 2007, an annuity will not be a countable asset if the annuity is neither revocable nor assignable, and as long as the annuity is expected to pay out no less than the purchase price of the annuity in level monthly installments over the actuarially determined life of the annuitant. State provided actuarial tables must be used. As a further condition, the annuity must name the State as remainder beneficiary (although the State may take second place behind a spouse and a minor child).

Personal Property: Trusts

The Medicaid trust rules are extremely complex. Please do not rely upon this simple explanation for a definitive answer.

Was the trust was funded by the applicant or the applicant's spouse?

General Rule: If an applicant is the beneficiary of a trust funded with his assets or the assets his spouse, the trust will be countable to the applicant. Of course, a number of significant exceptions apply.

Exception 1: Was the trust funded by a spouse's will? If so, and if the trust was properly designed as a discretionary trust (meaning the trustee is not legally obligated to distribute anything at all to the beneficiary), the assets in the trust will not be countable.

Exception 2: If not funded by will, does the trust allow the trustee to distribute anything from any part of the trust under any conceivable circumstance? If the answer is "no" the trust is not countable. If the answer is "yes" with respect to any part of the trust, that part of the trust is countable.

A trust may have different parts. Part A or Part B. Perhaps parts for different beneficiaries. Importantly, most trusts have "income" and "principal". A trust may prohibit distributions of principal under any circumstances but allow or require distributions of income. The "principal" would not be "countable" and the income, of course, would be.

Really Important Note: If an applicant or her spouse sets up an "Exception 2" trust that prohibits any distributions to the applicant or the spouse, it may not be a countable asset, but the trust certainly will raise transfer of assets concerns when it is established, especially if the trust was set up within the last five years.

Exception 3: If the trust was funded with the applicant's own assets and the applicant is under age 65 at the time the trust is set up, then the trust might qualify as a "self-settled special needs trust". See a further explanation of special needs trusts on the Mason Law website by clicking HERE.

Was The Trust Funded By Someone Else?

If a trust set up by someone other than the applicant or her spouse, will the assets be counted? Answer: It depends.

General Rule: If a trust set up by someone other than the applicant or her spouse requires the trustee to distribute assets under certain circumstances, the assets that are required to be distributed will be countable if those circumstances occur.

Common Example: Mom sets up a trust for daughter that requires assets to be distributed for the "health, education and maintenance" of the daughter. The trusts assets will be countable if daughter needs to go into a nursing home.

Common Example: If the trust says my trustee may not distribute to daughter in any manner that would disqualify her for nursing home benefits under Medicaid, but may distribute for other reasons, the trust assets will not be counted. These types of trusts are commonly referred to as "third party special needs trust". See a further explanation of special needs trusts on the Mason Law website by clicking HERE.

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TREATMENT OF ASSETS FOR A MARRIED COUPLE

Medicaid law provides special protections for the spouse of a nursing home resident, known in the law as the "community" spouse. Under the general rule, the spouse of a married applicant is permitted to keep up to $104,400 (2008) of countable assets. The protected amount is referred to as a "Community Spouse Resource Allowance" or "CSRA". Georgia is much kinder than some states (such as North Carolina) in which the Community Spouse is allowed to retain only one-half the countable assets up to the maximum of $104,400.

So, for example, if a couple owns $190,000 in countable assets on the date of application, the spouse entering a nursing home will be eligible for Medicaid once their assets have been reduced to a combined figure of $106,400 - $2,000 for the applicant and $104,400 for the at-home spouse. If the couple owned less than $106,400 in countable assets, they will be able to retain all of those countable assets.

After a determination has been made as to the nature and extent of an applicant's (and spouse's) assets, and whether any of those assets will be protected, the next major inquiry involves whether any assets have been transferred before the application.

This concludes the discussion of the classification of assets for Medicaid eligibility purposes. We now turn our attention to the much misunderstood (but very harsh) Medicaid transfer penalties.

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THE TRANSFER PENALTY

The other major rule of Medicaid eligibility is the penalty for transferring assets. Medicaid has always imposed some sort of restriction on transferring assets before entering a Medicaid application - were it not for such restrictions, anyone could qualify for Medicaid simply by giving assets away at the time nursing home entry became necessary.

Early in 2006 Congress passed, and on February 8, 2006, President Bush signed, the Deficit Reduction Act ("DRA"). DRA mandates tough new restrictions on the transfer of assets made on or after the effective date of February 8, 2006.

The effects of DRA have been trickling down to the states and each of them has been grappling with how to implement DRA locally. Georgia began enforcement of the new rules on February 1, 2007, retroactive to transfers made on or after February 8, 2006.

There will continue to be many details to hammer out as DCH, county DFACs and advocates sort through the new Medicaid manual changes. Advocates (and DCH) continue to interpret new rules and manuals issued by DCH (many of which are not a model of clarity). Expect confusion and differing rules interpretations through 2008 and into 2009. The remainder of this memo will refer to February 8, 2006 (the date with respect to which DCH is applying the new DRA Rules) as the “Effective Date”.

The excellent news is that the new DRA rules apply the transfer rules with respect only to transfers on or after the Effective Date. The pre-February 8, 2006 (or "old") rules will continue to apply to transfers made through the day before the Effective Date (February 8, 2006).

Because the pre-February 8, 2006, rules will continue to be relevant for at least another year or more, this memorandum will discuss the old transfer rules (“Old Rules”) and the new rules that were implemented in Georgia on November 1, 2007 (“DRA Rules”).

Old Rules

If an applicant (or his or her spouse) transferred assets before the Effective Date, he or she will be ineligible for Medicaid for a period of time beginning on the date of the transfer (often referred to as a “Transfer Sanction”). The actual number of months of ineligibility is determined by dividing the amount transferred by $4,614.90 (and under the Old Rules rounding down to a whole number). For instance, if an applicant made gifts totaling $100,000, he or she would be ineligible for Medicaid for 21 months ($100,000 ÷ $4,614.90 = 21.66). Another way to look at this is that for every $4,614.90 transferred, an applicant will be ineligible for nursing home Medicaid benefits for one month.

There is no cap on the period of ineligibility. So, for instance, the period of ineligibility for the transfer of property worth $400,000 is 86 months ($400,000 ÷ $4,614.90 = 86.68). However, DCH may only consider transfers made during the 36-month period (60 months in the case of trusts) preceding an application for Medicaid, the "look-back" period. Effectively, then, there is a 36-month cap (60 for trusts) on periods of ineligibility resulting from transfers. People who make large transfers have to be careful not to apply for Medicaid before the 36-month (60 months for trusts) look-back period passes.

Example: Bill Gates transferred $1,000,000 to the kids on March 1, 2005, and applied for Medicaid on February 25, 2008, 35 months and 25 days after his large gift to the kids (within 36 months). (Either Bill received bad advice or no advice because, presumably, he could he could no longer afford good advice!). Because he had a transfer within 36 months of the application, Bill will be assessed a 229 month Transfer Sanction beginning on March 1, 2005. Had Bill waited another few days (until on or after March 1, 2008) to file his application there would be no sanction because the gift transfer had been made more than 36 months before the application.

Important Reminder: The Old Rules apply only to transfers made before February 8, 2006.

DRA Rules

The most significant DRA change is that Transfer Sanctions will not begin to run until both of the following conditions have been met: (i) the applicant is in a nursing facility with a physician’s formal approval and (ii) the applicant is otherwise financially qualified for Medicaid (other than the fact that there will be a Transfer Sanction). Also, rounding down no longer applies and fractional Transfer Sanctions will be in force.

Example: Had Bill made a $100,000 transfer made on October 15, 2005, a 21 month Transfer Sanction would have applied under the old rules and would begin to run on October 1, 2005. Under the DRA Rules, the Transfer Sanction will not begin to run until later. For example, say Bill transferred $100,000 on November 15, 2007, and later filed for Medicaid in December, 2007 when he has $10,000 cash in the bank. To be eligible, he must have no more than $2,000 in countable assets. On January 14, 2008 he has spent money and has $1,500 left. A 21.66 month Transfer Sanction would then begin to run.

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Exceptions to the Transfer Penalty

Under DRA a Transfer Sanction will not apply if an applicant can prove “by the greater weight of the evidence” that the earlier transfer was made exclusively for reasons than to qualify for Medicaid. Note that the burden will be on the applicant, who may or may not be in any position to go through a hearing process and may well need to engage an attorney for assistance.

Very important planning exceptions are available. Transferring assets to certain recipients will not trigger a period of Medicaid ineligibility. These exempt recipients include:

(1) A spouse (or anyone else for the spouse's benefit);

(2) A trust for the benefit of a blind or disabled child; or

(4) A trust for the benefit of a disabled individual under age 65 (even for the benefit of the applicant under certain circumstances).

Special rules apply with respect to the transfer of a home. In addition to being able to make the transfers without penalty to one's spouse or blind or disabled child, or into trust for other disabled beneficiaries, the applicant may freely transfer his or her home to:

(1) A child under age 21;

(2) A sibling who has lived in the home during the year preceding the applicant's institutionalization and who already holds an equity interest in the home; or

(3) A "caretaker child," who is defined as a child of the applicant who lived in the house for at least two years prior to the applicant's institutionalization and who during that period provided such care that the applicant did not need to move to a nursing home.

As mentioned above, a transfer can be cured by the return of the transferred asset in its entirety.

Hardship Exception to Transfer Sanction

The transfer rules are harsh. So harsh, in fact, that Congress required the states to implement hardship exceptions to the application of the rules.

The Georgia Medicaid manual defines undue hardship “as a situation wherein an individual would be deprived of medical care such that his/her health or life would be endangered; or would be deprived of food, clothing, shelter, or other necessities of life”.

Undue hardship will not exist when a sanction will result in a mere inconvenience, the applicant has transferred assets to a spouse when then refuses to cooperate, or the applicant’s (and spouse’s) resources (both countable and noncountable) are such that the applicant’s health or life would not be endangered.

The determination is very much a “facts and circumstances” decision.

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LIENS AND ESTATE RECOVERY

In 1993 Congress required all states to include estate recovery procedures in all Medicaid plans. Estate recovery, quite simply, is a procedure in which the state Medicaid program attempts to recover all or a portion of the benefits paid with respect to an individual from that individual’s estate upon his or her death. Congress left a bit of leeway within which the states could design an estate recovery program.

Most states devised and implemented an estate recovery plan within a few years after 1993. Georgia and Michigan held out to the bitter end. In 2006 Georgia finally began implementation of an estate recovery plan. It was, and continues to be, a painful process.

The General Assembly attempted to exempt the first $100,000 of an estate. After CMS threats (the $100,000 did exceed the leeway granted by the federal legislation), Georgia relented, and opted for exempting estates of less than $25,000.

The federal legislation allows states the option of electing to recover against probate assets only or against all assets. Probate assets are those assets that pass through a decedent’s estate and under the terms of a will (if there is one). Nonprobate assets are assets that pass pursuant to terms independent of an estate (for example, life insurance policies that name beneficiaries other than estate, joint tenancy with rights of survivorship bank accounts, or life estates in real property). DCH elected to use the harsher method and to attempt estate recovery against all assets – notwithstanding that enabling legislation from the General Assembly does not allow this expanded recovery.

Further, DCH rules and manual provisions attempt to recover against various nonprobate assets with very little statutory authority. Expect litigation.

The law also provides exceptions to estate recovery when hardship can be proven. In other cases DCH will completely forego estate recovery if the deceased is survived by a spouse or a minor or disabled child.

Advance planning is always suggested if nursing home financing is of any concern; avoiding or mitigating the effects of estate recovery, however, makes advance planning particularly critical. You should always seek assistance from qualified counsel if facing estate recovery.

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TREATMENT OF INCOME

The income eligibility rules are convoluted, but in summary, if the applicant’s income is in excess of $1,911 (three times the SSI Federal Benefit Rate), the applicant will not be eligible for Medicaid. The problem is easy to remedy with a qualified income trust (a “QIT” or so-called “Miller Trust”). The income in excess of the allowable $1,911 is paid into the trust (we recommend depositing all income into trust) and is disbursed monthly to pay a spousal allowance (see discussion below under SPOUSAL PROTECTIONS), a $50 personal needs allowance and a portion of the nursing home bill before Medicaid begins to pay.

When a nursing home resident becomes eligible for Medicaid, all of his or her income, less certain deductions, must be paid to the nursing home (perhaps through a QIT as discussed, above). The deductions include a $50-a-month personal needs allowance, a deduction for any uncovered medical costs (including medical insurance and Medicare supplemental plan premiums), and, in the case of a married applicant, an allowance he or she must pay to the spouse that continues to live at home.

As will be discussed a bit more below, Medicaid considers only the income of the applicant and not that of the community spouse (the spouse not being institutionalized). Medicaid uses a “name on the check” rule in determining income.

Spousal Income

In all circumstances, the income of the community spouse will continue undisturbed; he or she will not have to use his or her income to support the nursing home spouse receiving Medicaid benefits. In some cases, the community spouse is also entitled to share in all or a portion of the monthly income of the nursing home spouse. DCH determines an income floor for the community spouse, known as the Community Spouse Maintenance Need Standard, or CSMNS, which allows for a diversion of income from the institutionalized spouse to bring the community spouse up to a certain minimum income. The maximum 2008 level is $2,612. For example, a community spouse with monthly income of $1,500 would be entitled up to an additional $1,112 of the institutionalized spouse’s income. (Where the community spouse can show hardship, DCH may award a larger spousal allowance, but only after an appeal to fair hearing.) A similar allowance is allowed for certain dependent family members of up to $1,712.

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THE MEDICAID APPLICATION

Applying for Medicaid is cumbersome and tedious. Every fact asserted in the application must be verified by documentation. The application process can drag on for several months as the local DFACS demands more and more verifications regarding such issues as the amount of assets and dates of transfers. If the applicant does not comply with these requests and deadlines on a timely basis, DFACS will deny the application. In addition, after Medicaid eligibility is achieved, it must be redetermined every year.

Further, under the new DRA transfer sanction rules it may be necessary to file two Medicaid applications if a sanctionable transfer has been made under the new DRA Rules. The first application will be needed to establish that the applicant is both in a nursing home and is otherwise financially qualified. Without such an application it would be impossible to begin the running of a Medicaid transfer sanction. Finally, a second application will be needed to establish that a sanction has run and that all other necessary requirements for an approved application continue to apply to the applicant.

SUMMARY

As you can see, the Medicaid rules are exceedingly complex and becoming harsher. Nevertheless, many worthwhile planning opportunities exist that this rather “bare boned” summary cannot explore. We can help.

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