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Medicaid App

A North Carolina Medicaid Application

Once a fairly routine procedure, the North Carolina Medicaid application process has gotten much more difficult. Perhaps rising budget concerns and controlling Medicaid is the reason.

The North Carolina Medicaid Application Problem

Medicaid has always placed restrictions on the ability to transfer assets within a certain time prior to applying for benefits (currently five years, it used to be three years).

And as part of that process, an applicant has always been required to state on the application whether any transfer has been made. As I tell my clients, Medicaid and Medicare fraud is a serious crime and you should NEVER intentionally lie or misstate a fact on the application.

Also a traditional part of processing the Medicaid application by DSS was to spot-check financial records, particularly if the caseworker had questions or suspicions.

Now, however, in North Carolina the Medicaid application process has routinely become much more difficult.

Additional Medicaid Application Documentation Demands

Within a few days of filing a Medicaid application, the county DSS offices are demanding five years of bank statements. FIVE YEARS. That’s 60 months.

To top it off, the applicant is usually given about 12 business days to comply (limited extensions can be granted) or the application will be denied.

Many banks will have online access to account statements, but often for a limited time (say, two years). To add insult to injury, one bank (which bank shall remain unnamed) insisted on charging $800 to retrieve the documents.

Imagine the difficulty involved in retrieving these documents for an applicant who has moved into the state within the past few years. So far, I have not encountered this situation, but it is bound to happen.

In any event, the completed nursing home Medicaid applications are voluminous (or as our president would say, “YUUUGE!”).

Careful Scrutiny of Medicaid Transfers

Caseworkers have also become much more vigilant and suspicious of transfers they may spot on the old banking records.

Questions WILL be raised on frequent “Cash” withdrawals or checks payable to Junior. I’ve written about this problem elsewhere.

Medicaid restricts transfers of assets for less than the value of the assets. In other words, gifts or partial gifts. The presumption is that a transfer to a family member is a gift.

Transfers to reimburse a family member for advances made or to pay for services rendered must be handled very carefully.

Four years after the fact, it might be impossible to prove that the $1,000 check payable to Dorothy Daughter was not a gift.

The American Council on Aging maintains a useful website that describes this concept in general non-state-specific terms.

My Recommendations for North Carolina Medicaid Application Preplanning

If you (or a loved one) might be applying for nursing home Medicaid in the foreseeable future, there are a number of things you should do NOW to help avoid Medicaid grief later.

  • Retain bank statements and other financial records going back FIVE years. If you do not have them, NOW would be a great time to start gathering them.
  • Also, have mercy on your lawyer and keep those financial records reasonably well organized. An added plus: Scanned records are great and take up less room.
  • Do the same with medical records and medical expenses. Again, scanning is great.
  • Document reimbursements. The best bet is to have a simple reimbursement agreement in place. Example: Mother agrees in writing to reimburse Daughter for expenses she incurs taking care of Mother.
  • If you (particularly a parent) are advancing cash to someone (particularly a child), get a promissory note in place.
  • If you intend to pay someone for care or other services (particularly a parent paying a child) get it all into a Service Agreement. If you don’t, it’ll be a gift subject to Medicaid transfer sanctions.

Does all this mean you might have to engage me (or one of my colleagues)? Perhaps. It may even be smart. The legal fees will far outweigh the potential Medicaid grief later. It is so easy to make some unwitting Medicaid application mistake years in advance.

If a nursing home stay is on the horizon and you have any concerns about asset protection (saving the house, saving other assets) please get help. It may be a bit expensive, but with a nursing home bill cracking along at $11,000 a month a knowledgeable attorney might be a great bargain.

Finally, if a nursing home stay is immediately at hand, get help. The Medicaid application process is not for the faint of heart and full of potential traps.

 

PS Most Medicaid DSS caseworkers are very nice people. Some are even friends of mine. But they have a job to do. And they’ll do it.

Filed Under: Featured, Medicaid, Nursing Homes, Reader Favorites Tagged With: , , ,

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Social Security recently announced a cost of living adjustment (COLA) for 2019. The 2.8% adjustment is important to more than seniors looking forward to the monthly benefit check because it drives a number of other important benefit levels as well.

In addition to Social Security retirement benefits, the adjustment applies to Social Security Disability Income and directly or indirectly impacts Supplemental Security Income (SSI – the low income supplement for the elderly and poor that is an automatic gateway to Medicaid), veterans’ benefits, Medicare and Medicaid.

The VA’s special monthly pension (housebound, aid and attendance) revisions take effect December 1, 2018. You may view the new Aid and Attendance as well as the Housebound benefits on this website.

As mentioned, above, the FBR (the maximum SSI payment) has been revised, as well as the Federal Poverty Level figures. Those, too, have been posted and will remain available all year for reference.

Medicare premiums, co-payments and deductibles have been adjusted, and those, too, are conveniently posted. Those numbers do not tie into Social Security. Medicare premiums for Part B edged up to $135.50 from $134 (generally . . . it can get a little more complicated depending on income).

Finally, various Medicaid nursing home factors have been adjusted, and are posted as well.

 

 

 

 

Filed Under: General, Medicaid, Medicare, Nursing Homes, Social Security, Veterans Tagged With: , , ,

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It happens several times a year.

The appointment ‘blurb’ in my calendar says, “Cindy Swanson and Cheryl Flinster. To discuss Medicaid and asset protection for Cheryl and Ron Flinster. Cindy is their daughter and Ron is in rehab.”

Two days before the appointment we receive an email. “Sorry, need to cancel. Mom is not feeling well and Dad is not improving. In fact, he may not live more than a few months.”

Six weeks later we read Ron’s obituary. Two weeks later Cindy reschedules an appointment for her mother and her to “regroup now that Dad has passed.”

Cheryl tells me that she is very concerned about protecting the house and a tract of land, as well as about $150,000 “in case I need to go into a nursing home like Ron.” Cheryl also tells me she is not in good health.

Because I’m a nice guy, I don’t have the heart to tell them that had they come in before Ron passed we could have pursued a strategy that would have protected everything they owned and Cheryl wouldn’t be sitting there worrying about “protecting everything.”

You see, the Medicaid rules are structured such that it is MUCH easier for a married couple to undertake asset protection planning than for a single person (for example, a widow).

It doesn’t mean the single person is out of luck, but it does mean he or she doesn’t have as many options as a married couple.

Of course, I feel for Cheryl. She simply didn’t know. But now YOU do.

It is tempting to treat a lawyer (and a dentist) as a “round tuit.” Human nature, I guess. But RESIST the urge. Time is your friend if you use it wisely.

Have a great Thanksgiving.

PS  We’re seeing clients in BOTH Charlotte and Asheboro (hint, hint).

Filed Under: Medicaid, Reader Favorites, Uncategorized

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The time to act is NOW.

That deer in the headlights look!

On Tuesday, September 18, 2018 the VA released new regulations applicable to the VA pension benefit, variously known as “improved pension,” “new pension,” “special monthly pension,” “housebound” or “aid and attendance.”

The regulation is set to take effect thirty days after publication. This has set up a less than 30 day count-down for those who may have been considering asset transfers or trust funding to qualify for potential VA benefits within the next three years.

The regulations provide new rules regarding how much net worth a VA benefit applicant may retain and qualify for benefits (actually some good news there) and provide new Medicaid-like transfer penalties (sanctions).

This brief memo discusses those rules applicable to needs-based VA benefits (those that impose asset and income limits). This memo does not discuss various rules regarding activities of daily living applicable to independent, assisted, or in-home living arrangements. Nor does this memo discuss any changes to service-connected benefits.

Some attorneys will read this. I have therefore given them a hand by inserting some citations. References to the new regulations under Title 38, Part 3, of the Code of Federal Regulations are shortened to “Reg. § 3.2**” format.

To emphasize: ACTION MUST BE TAKEN NOW IF YOU INTEND TO TRANSFER ASSETS AND QUALIFY FOR THESE BENEFITS SOON AFTER THE TRANSFER.

New Net Worth Limits

Let’s get the good news out of the way. The new net worth rules for an applicant are a relief from the old and ambiguous asset rules. Under the old rules an applicant could not have more than $80,000 in countable assets in any event, and VA caseworkers routinely lowered this limit depending upon an individual applicant’s age, health, or marital status. In fact, the VA Commentary (the “Commentary”) to the new regulations makes this very observation and notes how unfair that standard is.

Now the VA has borrowed the federally-mandated Medicaid Community Spouse Resource Allowance (CSRA) as a net worth limit. The CSRA is an amount set by the Centers for Medicare and Medicaid Services on an annual basis and is used to determine the level of countable assets the spouse of a nursing home resident is allowed to retain while qualifying the nursing home resident for Medicaid. This year (2018) that amount is $123,600. Annually adjusted CSRA amounts can be seen here.

Under Reg. § 3.274(a)-(b) we now have a bright-line net worth test equal to the CSRA ($123,600 . . . it will go up in 2019) PLUS one year of adjusted income (called “IVAP” or “Income for VA Purposes”). IVAP is income adjusted downward for a wide array of “qualified medical expenses”). Though the CMS Medicaid number is obviously intended for use by a married couple (one spouse in the community, the other in the nursing home), in the VA context it applies to every applicant, regardless of marital status.

Example: Harry is married to Mildred. They have $100,000 in VA countable assets and annual income of $30,000, but qualified medical expenses of $40,000 (assisted living expenses). Under the old/existing scheme Harry would not qualify for VA benefits. Under the new scheme he will (with room to spare).

Example: Harry died. Mildred needs to apply for VA benefits. Under the new rules, no problem. As long as she is under $123,600.

I’ll have some more specific comments about trusts and annuities, and how they relate to net worth, below.

The Dark Side: Residential Real Property

Under the old rules, a residence and underlying/surrounding land “similar in size to other residential lots in the vicinity” were not countable. If every residence in the area was on a 50 acre farm, the applicant’s residence and surrounding farm land would not be countable.

The new rules impose a 2 acre limit “unless the additional acreage is not marketable.” The examples given with regard to nonmarketable acreage related to acreage “only slightly more than 2 acres,” property that might be inaccessible (surrounded by other owners, perhaps) or property subject to zoning limits that could prevent a sale.

Example: Under the old rules Dad living on 10 acres of land, which seems to be the semi-rural standard in his neighborhood. Under the new rules, Dad likely has eight acres of countable real estate.

Transfer Penalties

Under old VA rules, there has been NO transfer penalty. This means that Mom or Dad could transfer excess assets and apply for VA benefits the next day. New Reg. § 2.276(e) now imposes transfer penalties.

The Commentary and the regulations clearly say that the new transfer rules apply to transfer made AFTER the rules become effective. You have until October 18, 2018 to transfer excess assets without being subject to the new rules.

Effective October 19, 2018, transfers of “covered assets” transferred after October 18, 2018, will be reviewed for a period of thirty-six (36) months to determine whether a transfer penalty (a period of ineligibility for VA benefits) should be applied.

Below, I will review what transfers will be sanctioned (not all transfers will be) and how the penalty will be calculated

 Applies to “Excess Asset” Transfers Only

The term used by the VA is “covered assets.” A transfer penalty applies to those amounts transferred that exceeded the net worth limitation and only to the extent that, if retained, would have caused the applicant to exceed the limitation. See Reg. § 3.276(a)(3).

Example:  Edith transferred $20,000 to her daughter on October 20, 2018, and applied for VA benefits on November 1, 2018, with $70,000 cash in her checking account. There will be NO VA transfer sanction because Edith was below the net worth limit before the transfer and the transfer did not cause her to dip below the limit (she was already below it!).

Example:  Joe transferred $50,000 to his son on October 20, 2018. He applied for VA benefits on November 1, 2018. At the time of the application he had $100,000 cash. Accordingly, at the time of the transfer Joe had $150,000. The net worth limit is $123,600. His net worth at the time of the transfer exceeded the net worth limit by $26,400 ($150,000 – $123,600). As a result of the transfer, $26,400 will be subject to a penalty (which will be calculated below).

Calculating the Transfer Penalty

Once the covered asset amount (the amount subject to the transfer sanction) has been determined, the penalty or sanction can be determined.

Divide the value of the covered assets by a divisor that will always be the “Maximum Annual Pension Rate” (MAPR) for a veteran with one dependent. The MAPR for a veteran qualifying for Aid & Attendance benefit (the highest) with one dependent is $26,036 annually. The regulations say to divide that by 12 and drop the cents. Reg. § 3.276(e)(1). In 2018 that amount is $2,169 ($26,036/12 = $2,169.67).

It does not matter at whether the transfer penalty is being calculated for a single veteran, a married veteran, or a widow of a veteran. Always use the MAPR for a veteran with a dependent divided by 12.

Example: Joe, from above, had a covered amount of $26,400. His sanction is 12.17 months.

When the Penalty Begins to Run and When It Ends

The penalty begins to run on the first day of the month following the month of transfer. Reg. § 3.276(e)(2). The sanction ends on the last day of the month in which the sanction expires and the applicant is again eligible for benefits on the first day of the following month. Reg. § 3.276(e)(3).

Example: Back to Joe. Joe transferred $50,000 on October 20, 2018. We determined that $26,400 was the covered amount, and that generated a sanction of 12.17 months beginning November 1, 2018. The 12.17 month sanction period expired sometime during November, 2019, and Joe would be eligible for benefits beginning December 1, 2019.

Can a Transfer Be Cured?

Yes. A transfer can be corrected, wholly or partially, if the correction is made within certain time periods (involving notice from the VA and notice back to the VA that corrective action has been taken). I am not going to dwell on that topic in this article. Since we have enough to deal with now, we’ll come back to it.

Trusts and Annuities

The new rules add some unwelcome clarity to the use of trusts and annuities.

A bit of history: I have explained to my students and clients for years that under Medicaid and SSI the asset transfer rules apply only to assets that, although once owned by the applicant or a spouse, are no longer countable or available assets. Conversely, if the asset is deemed to be available or countable, the transfer rules are inapplicable. This may seem simple, but it is easy to mix the two types of rules up.

Remember:  If the transfer rules apply, it is because the asset is no longer deemed available. Now to the new VA regulations.

Reg. § 3.276(a)(5)(ii) clearly says that a transfer that reduces net worth is a sanctionable transfer UNLESS the applicant can liquidate the entire balance transferred for his or her own use. The Commentary discusses at length that it is irrelevant that the transferred asset produces income. The transfer rules will sanction the transfer of the principal asset and the income rules will result in payments back to the applicant as countable income.

Annuities

This, of course, is what occurs upon the purchase of an annuity. The single premium is paid to the insurance company, and an annuity stream comes back to the annuitant. The regulations and the Commentary explicitly apply this concept to annuities.

If an annuity is purchased, yet the applicant can liquidate the annuity, then the asset is countable. If an annuity is purchased and the applicant is no longer able to liquidate the asset for his or her own use, it is a transfer (though it will throw off countable income to the applicant).

In my opinion, this will all but kill the use of annuities in short-term/crisis VA benefit planning. In fact, the commentary devotes considerable space to a discussion that this was the very intent given the government’s perception that veterans were being abused by annuity sales schemes.

Trusts

There has been considerable confusion over the years about the VA treatment of trusts, particularly irrevocable grantor-type trusts in which the grantor has retained an income interest. The question was, did the retention of an income stream constitute enough of a “use for the benefit of the applicant” so as to render the entire trust countable for VA benefit purposes?

The regulations have provided an answer.

Reg. § 3.276(a)(5)(ii) specifically applies to both trusts and annuities. All of the commentary directed to annuities applies to trusts.

If an applicant transfers assets to a trustee and surrenders all of his or her right to liquidate the trust for his or her own benefit, yet retains an income interest, the result is no different than the purchase of an annuity.

If an asset transfer to trust is sanctionable (as it clearly is under the regulations if the applicant has retained no right to liquidate or control the trust for his or her own benefit) the transferred assets cannot be deemed available.

Of course, I believe that nongrantor, irrevocable trusts are clearly not countable (and never were). On the other hand, I believe it is now clear that irrevocable “income only” trusts are also not countable (although any income distributed to the applicant clearly is countable income).

Alas, while the trusts are not countable, funding them is now a potentially sanctionable event (depending on whether the assets transferred to trust are considered “covered assets” – discussed above – and whether the funding event occurred within 36 months of the application or whether the sanction may have run its course during the preceding 36 month look back period).

Trusts can still be a useful tool. But the potential applicant (or applicant family) needs to have the foresight to start early with planning.

Going Forward

In the meantime, if you (or a client of yours if you’re an attorney reader) have been meaning to “git ‘round to it” on planning you have just a few weeks left. Get on it! Now!

If you are not an attorney and think the new regulations might affect you, please make arrangements to see an attorney with experience in this area and who understands these rules. Of course, I have experience in this area and I understand these rules . . . otherwise I wouldn’t be writing this article, now, would I?

Mason Law, PC, has limited slots available to help. Because of the limited time, we will likely recommend quick remedial action with a plan to ‘circle back’ after the deadline has passed to complete a plan. Please do not call after the first week in October and expect a miracle appointment slot to open and for us to miraculously pull a trust out of our bag and fund it days before the deadline.

Call us in Charlotte at 704-276-6446 or Asheboro (Triad) at 336-610-6000.

Attorney friends, feel free to share!

Robert A. Mason, CELA, CAP, is a board certified specialist in elder law, a member of the Council of Advanced Practitioners of the National Academy of Elder Law Attorneys (less than 100 nationwide), and a fellow of the American College of Trust and Estate Counsel.

Filed Under: Reader Favorites, Veterans Tagged With: , , ,

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Based on a column first appearing in the Asheboro Courier-Tribune, January 26, 2018

What a mess.

Nursing home care now runs around $8,500 monthly. Basically, there are three ways to pay for it:  Private, insurance (which often covers just a portion), or Medicaid.

Privately paying isn’t often an option because most folks can’t fork out $100,000 annually for a nursing home.

The long term care insurance (LTCi) industry is a mess. In early marketing frenzies insurers kept premiums low based on assumptions that many folks would eventually drop their policies or not live long enough to make significant claims on their policies.

Shocked older womanSurprise! They kept them, they lived, they collected.

The result? Those companies that committed to level premiums, took a huge hit. Those that made no such commitment have skyrocketed their premiums. The good companies hung in there and took HUGE hits. The weaker players bailed or went belly-up. Twenty years ago, over a hundred insurers sold LTCi policies. Today, perhaps a dozen.

Recently (January 18, 2018) the Wall Street Journal ran an excellent piece by Leslie Scism on this problem.

Scism quotes Thomas McInerney, Genworth Financial’s CEO. Genworth, a big LTCi player that didn’t drop out and booked a multi-billion dollar financial loss (they probably wish they’d dropped out). When it came to their level premiums McInerney said “We should have never done it, and the regulators never should have allowed it.”

What a hoot! That’s like the drunk driver who said. “I shouldn’t have been driving drunk, and if the police had only stopped me I wouldn’t have hit those people.”

That leaves Medicaid.

Around 70% of nursing home costs in the US are covered by Medicaid. Like it or not, Medicaid is a popular financing mechanism (and NOT a ‘type’ of nursing home). Initially, it may have been meant to be a program for the poor (and still is in the eyes of budget hawks), but it has evolved to meet a need.

The debate regarding health benefits had been going on since the 1930s. One school favored a public entitlement, the other favored an insurance-based approach.

In the 1960s the Johnson administration and Congressional leaders hashed out a compromise. Medicare would be an insurance-like product: Pay-in through employment taxes and premiums at retirement. Upon retirement, file claims as with any insurance. Medicaid would be a welfare-type benefit: Medical coverage would be made available to the poor.

As the programs were being finalized, nursing home benefits weren’t a real priority. Cancer, strokes, heart attacks, and such carried folks away much more quickly then, than now. Medicine has vastly improved. Folks are sticking around longer to develop chronic acute conditions that send them to the nursing home.

In any event, Congress tacked nursing home coverage onto Medicaid (with only minor benefits allowed under Medicare).

50 years later, things are strange.

First, there is what I call the “disease lottery.” If one of my clients develops brain cancer, goes through surgery, radiation, chemo, and perhaps rehab, she will rack up hundreds of thousands in medical expenses. If she has Medicare and a decent supplemental policy, or perhaps Medicare Advantage, she will have no worries (well . . . financially). On the other hand, if she develops Parkinson’s or Alzheimer’s and goes to a nursing home she is going to be out of luck (unless, perhaps, I can help her).

Second, the person who lived hand-to-mouth has nothing to worry about. Simply go down to DSS and apply for Medicaid. The person who managed to lock-down and keep an LTCi policy, or who is very wealthy and can afford $8,500 a month, will be fine.

On the other hand, the person who lived frugally, worked hard, skipped vacations and expensive cars, paid the bills and amassed a ‘fortune’ of a few hundred thou and a paid-off ranch in the ‘burbs – the person who ‘did everything right’ – will be plain out of luck (unless, perhaps, I can help her).

I tend to be a fiscal conservative. I believe something must be done with entitlements – intelligently, however (gasp). The way to fix a social problem is not by slashing the budget because that will only exacerbate the problem.

Why not add a long term care component (say, standardized X, Y, and Z LTC plans) to Medicare? When one first signs up for Medicare and has the option to purchase a supplemental policy, add the option to purchase an LTC plan. Retain Medicaid as a draconian safety net for those who were irresponsible enough not to enroll during the open enrollment period.

What’s not to like? Takes care of a pressing problem and gets private enterprise involved.

Only one problem: Trump, Ryan and McConnell don’t know me and probably aren’t interested in hearing from me. In the meantime, I’ll take care of my clients.

 

Filed Under: Reader Favorites, Uncategorized