Articles Posted in Medicaid Eligibility

It can can a confusing, scary, and stressful time for all New Yorkers who use the Medicaid system for necessary health care or for those who suspect they may need it down the road. Not a day goes by that news does not break at either the state or national level regarding payment cuts, service trimming, changes to qualifications, and more.

Considering the complex political dynamics involved in any major decision regarding the New York Medicaid system, it is next to impossible to make predictions with certainty. But many experts in the field are more than eager to share their ideas about what the program might look like in the future.

For example, some may be interested in a recent article a the journal published by the National Association of Elder Law Attorneys (NAELA). Entitled “Whither Medicaid,” the comprehensive article takes a look at all of the major notions about how Medicaid might disappear in coming years and how it may be saved via different alternative arrangements. The article can be read for free online in it’s entirety here.

Reuters published a story this week on the latest audit of the New York Medicaid system which has given leverage to those hoping to use financial worry to trim the system and the state budget overall.

We have previously discussed the audit by the Centers for Medicare and Medicaid Services which found that the federal government overpaid the state by billions of dollars in recent years. The actual audit is still not yet complete, but federal officials are set to conclude by the end of this month. It is only then that the full scope of the situation will be known and the effect considered. The story notes how the overpayment may ultimately wreck havoc on the state’s financial health just as some were hoping things were finally settling down.

All of this has placed a pall over the current work in Albany where legislators are working to approve the state’s next budget–around $140 billion.

Late last month the New York Health Department released a report that reviews the progress of a crucial shift in state policy affecting seniors needing long-term care. The full report (download it here), outlines the satisfaction of New Yorkers who have participated in the shift from traditional New York Medicaid coverage for long-term care to special HMOs to cover those care and costs. This report offers the first good opportunity to analyze whether these organizational shifts over the past few months have been positive for those seniors directly affected.

Somewhat quietly, thousands of elderly New Yorkers who previously received long-term care via Medicaid were shifted to HMOs managed by by private and non-profit companies. In total, 38 different companies are handling the work and, according to the NY Health Department, “providing high-quality services to consumers and helping them maintain or improve critical abilities associated with daily living.”

The law changed in 2010 to alter the way long-term care was provided by the state. The basic idea is that shifting long-term care costs to HMOs will save funds. In 2010, for example, the state spent more than $13 billion via Medicaid to provide long-term care to 300,000 residents. By shifting to HMOs, the costs will hopefully be kept in check, because the companies will receive a flat fee for patient care overall, regardless of the necessary services.

Talks between President Obama and Speaker of the House John Boehner to avert the “fiscal cliff” continue this weeks. While not the only leaders involved in the effort, most disagreement on the issues exist between the President and House Republicans. Some observers are confident that the parties will reach an agreement before the January first cliff. However, members of the public remain skeptical, and many are rightly worried about how the automatic cuts and tax increases will affect them.

New York seniors are likely wondering whether their Medicare or Medicaid support will be changed in any way as a result of going over the cliff or in a compromise to avoid it. While we will not know for sure until things are more settled, some members of Congress recently came forward to issue their support for protecting the full value of the programs.

As reported by Now NY, the group of Democratic Senators and House members held a conference this week arguing that no deal to avoid the cliff should include cuts to Medicare or Medicaid. This is stark contrast to some other policymakers who argue that there is no way to get a deal without actually conceding some budget cuts for those programs.

News about the New York Medicaid system has been surprisingly positive over the past few weeks. While stories of doom and gloom dominate federal discussions of the program, in our state there has actually been cause for optimism. Most prominently, Governor Cuomo recently announced that while the program is still quite expensive, the cost increases last year stayed below the self-imposed caps set to curb spending growth. This financial goal was attained even though the program added nearly 104,000 participants–essentially reaching a total of 5 million New Yorkers in the program.

These money-saving goals were met thanks in part to the work of the state’s Medicaid Task Force which was charged with finding ways to trim program expenses. Observers note that one important way this was achieved was by reducing expensive hospital admission rates and increasing usage of primary care. Our New York Medicaid attorneys appreciate that the state’s ability to meet this goals is good news for area seniors who rely on the program for their long-term care needs.

However, this one year cost curbing effort, while positive, does not mean that the all concerns about the program have been resolved. There are still many issues left to face to ensure local seniors who need it have access to this program. For one thing, the program’s expenses are still hitting local governments particularly hard. The Times Herald-Record discussed this issue in a story published this morning. County executives from Orange, Ulster, and Dutchess counties met yesterday to talk about a range of issues–Medicaid was by far the most pressing concern.

Making the decision to place a loved one in a nursing home is no routine matter. Emotions run deep during this time, when families struggle to balance the senior’s need for close care and safety with their concerns about the quality of life available in these assisted-living facilities. Our New York elder law estate planning attorneys have helped many families with this process. We appreciate that there are usually two big questions that come up: (1) What is the best facility for our loved one? and (2) How are we going to pay for it?

In answering the latter question, New York elder law attorneys will explain that the costs can either be paid out of pocket, via use of private long-term care insurance, or through the New York Medicaid system. The former question is a bit more challenging, because so much subjectivity is involved. The answer for each family is different. The exact type of care needed, proximity to loved ones, and similar details need to be considered when choosing which nursing home is best. Of course, as a general matter, every family will want to ensure that the nursing home they chose is one free of chronic neglect, mistreatment, and abuse. Many elder care advocates have explained that when it comes to safety measures, study after study has found that nonprofit nursing homes outperform for-profit facilities. One long-term care doctor explained, “Most studies show that nonprofits do a better job of caring for patients, but we’re not sure why that happens.” This is an important consideration for families deciding where to send their loved one.

A post this week in the New Old Age blog from the New York Times recently discussed another interesting comparison between for-profit and nonprofit homes: the employees are happiest at nonprofit nursing homes. This may be part of the reason why care at these facilities is superior. At the end of the day, the quality of life for those in these facilities is dependent on the work performed by the hands-on caregivers. Therefore, how those caregivers perceive their job is likely to play a key role in their day-to-day actions. The nonprofit employees were happier overall for a variety of reasons: their ability to help set policy, more supportive managers, and availability of adequate resources.

Demand for retirement communities, assisted-living facilities, and nursing homes is likely to balloon in the next two decades. During that time the number of Americans over the age of 65 is expected to double. Current projections predict that there will be more than 71 million seniors nationwide by 2030. Through work with local community members our New York elder law attorneys know that every day thousands and thousands more seniors are taking steps to plan for their long-term future. A key consideration in that elder care planning includes figuring out where one might want to live down the road.

However, many might be surprised to learn that New York currently has the fewest number of housing units geared toward seniors relative to our total number of households. The National Investment Center for the Seniors Housing and Care Industry reports that when compared to all other metro markets in the country New York continues to struggle the most in providing senior housing to keep pace with the aging demographics.

On Tuesday the New York Times reported on a few area development teams that are now trying to fill that void. When the housing market collapsed, the construction of new projects geared toward seniors ground to a halt. The largest companies in the industry were hardest hit by the recession leading one industry analyst to explain that things were “pretty much at an all-time low. There’s not much coming in the pipeline at all.” However, the smaller regional operations that have survived have a bit brighter outlook with one developer noting, “it’s a great time to develop senior housing…it’s an opportunity and there isn’t a lot of competition.”

Virtually all aging residents strive to create arrangements that will allow them to live at home and participate in their usual activities for as long as possible no matter what their specific healthcare needs. The ability to achieve this goal often hinges on the amount of planning that the individual has done beforehand to have the assets available to pay for the care. As we have frequently mentioned, long-term care insurance is one of the best ways of procuring this reality.

In addition, many area seniors are able to stay at home because they receive the assistance of family members. Tasks like house cleaning, grocery shopping, laundry, driving to doctor’s appointments, and similar aid is commonly provided by children and other relatives. This aid is frequently given ad hoc, without any formal arrangement between the senior and their loved one. Yet, for many local families it may be beneficial to create a specific New York caregiver agreement to provide legal protections to the relationship.

Reuters published a story this week on the increasing popularity and usefulness of these formal legal relationships between parents and family caretakers. The arrangement is mutually beneficial. For the younger caregiver, the contract allows them to provide assistance to their loved one in situations where they otherwise might not be able to afford it. Additionally, the senior may use the personal service contract to protect their assets. For example, if at-home care is initially provided without payment then the senior may ultimately lose assets to pay for eventual nursing home care. But if the senior pays their loved one a reasonable sum for caretaking duties, then the assets would not complicate the senior’s ability to qualify for Medicaid if a nursing home stay is eventually needed down the road.

Of course it is important for families to use the agreements properly. The care-giving relative must ensure that the taxes are paid on the money received, that the charges are reasonable for the services provided, and that documentation is proper.
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Unfortunately current economic hardships may exist more acutely for the LGBT elder community because of a lifetime of federal law discrimination that has affected their financial security and health care options. Of all the so-called financial safety nets, including Social Security and retiree health insurance benefits, the harshest effects on aging LGBT Boomers is Medicaid. To be eligible in New York for state nursing home assistance, certain asset and income level requirements exist whereby qualified applicants must be deemed impoverished.

New York State Medicaid allows the spouse of a person receiving Medicaid – “the community spouse” – to keep certain assets including the family home to protect against total impoverishment. Because marriage rights are not granted to same sex couples in New York, they cannot take advantage of this provision.

On the other side of the coin, the inability of same sex couples to marry in New York offers a distinct Medicaid planning advantage in later years. If you are in a same sex partnership and wish to plan ahead five years to protect your jointly owned home and life savings from nursing home costs, and cannot obtain long-term care insurance for any reason, you may both establish a Medicaid Asset Protection Trust for one other. Legally married couples may not name each other as the trustee in a MAPT. Same sex partners, however, are able to name one another as each other’s trustee and therefore do not have to go outside of the relationship to put someone else in charge in order to protect assets. A New York elder law attorney who has familiarity with the underserved legal needs of the LGBT community can best advise whether or not a MAPT is a viable financial solution in a given situation.

by Michael Ettinger, Esq.

I am unsure how many of you have run into this scam. I have seen it off and on for the last few years and think all should know about it. These companies that flog Medicaid annuities have a deal going with assisted living facilities that essentially says this. We will advertise and promote VA benefits to seniors. When they call us we will refer them to your facility provided you recommend our services, for people who come to you, in assisting them in the VA application (free of charge) and for financial planning. The company is actually in the business of selling Medicaid annuities and they give out Medicaid advice consistent only with the one product they have to sell.

Here is what happened in an actual case in my office recently. Client was told by the assisted living facility to contact the VA assistance company to help “expedite” the process. Company told the client it would take three months to get benefits. It is now nine months and nothing has been received by the family. Client was also told that they did not have to do anything now to protect assets because they could purchase a Medicaid annuity if and when she had to go into a nursing home. Turns out that client has rallied nicely and will be staying in assisted living for the foreseeable future. Family is now setting up a Medicaid Asset Protection Trust (MAPT) but nine months later than they should have but for the poor advice received by the annuity floggers. But also consider this: had the client needed nursing home care, it turned out that the HCFA life expectancy was only 5.5 years which the client, in this case, might have well outlived. The client was never told about the requirement that the annuity be actuarially sound (i.e. all the money had to be paid back to her within the 5.5 years) and what that meant or what the alternatives were. Client, in this latter case, would have been better off with a gift and loan strategy.

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