Medicaid Planning
The high cost of long-term care has made planning a critically important issue for most middle class seniors and their families. In fact, most seniors will likely require some form of long-term care. Sadly, many of them are unprepared for the significant financial burdens it places on their family’s hard earned savings. Financial devastation looms large for a family facing ongoing care at a rate of $10,000 or more per month.
Long-Term Care Options
While some seniors are able to afford private pay care, the cost of long-term care will wipe out savings of all but the wealthiest families in a matter of years. Those who have planned ahead by purchasing long-term care insurance have a degree of certainty and peace of mind, knowing that they have a lesser need to rely on other sources in the future. Unfortunately, many can’t afford the high cost of long term care insurance or worse, because of age of medical condition cannot qualify for long term care insurance altogether. If you do have long-term care insurance, you should be aware of what your policy covers. Many policies have high deductibles or provide for only a short period of care in facility. In fact, many who have long-term care insurance may still have to resort to Medicaid to pay for their care.
Medicaid Eligibility
The other option to pay for care is Medicaid. A joint federal-state program, Medicaid provides medical assistance to low-income individuals, including those who are 65 or older, disabled or blind. Medicaid is the single largest payer of nursing home bills in America and serves as the option of last resort for people who have no other way to finance their long-term care. Although Medicaid eligibility rules vary from state to state, federal minimum standards and guidelines must be observed. While Medicaid eligibility with respect to long-term care was not difficult in the past, there has been a steady drift towards more complex and restrictive rules, the latest being the Deficit Reduction Act of 2005 which went into effect in 2006 and was adopted in Florida November 1, 2007. These changes have resulted in complex eligibility requirements for those in need of Medicaid benefits. It’s no longer as easy as reviewing one’s bank statements. There are a myriad of regulations involving look-back periods, income caps, transfer penalties and waiting periods to plan around. Our law firm has the experience and the expertise to help avoid the financial ruin associated with the high cost of long-term care. Contact us today to start the process of understanding the issues surrounding Medicaid eligibility, other long term care benefits, and to implement the planning and application process.
2019 Medicaid Numbers
Assets allowed for single applicant - $2,000
Assets allowed for the community spouse - $126,420
Gross income for the Medicaid applicant - Less than $2,313* per month
Gross income for the community spouse - Unlimited
Minimum Spousal income diversion - $2,058/month (until 6/30/19)
Maximum Spousal income diversion - $3,090/month (until 6/30/19)
Exempt value of home (2018) - $585,000
Transfer Penalty Divisor - $9,171/month as of 7/1/18
Community Spouse Housing Allowance - $609/month
Personal Needs Allowance (as of 2018) - $130/month
Medicare Co-Pay (days 21-100) - $170.50/day
Medicare Part B Premium - $135.50/month for most people
*If income is higher, a qualified income trust will be required.
Medicaid Long-Term Care Waiver
Those who live at home or in the community but seek Florida Medicaid Managed Long-Term-Care coverage for Home and Community Based Services (HCBS).
The Florida Administrative Code Rules and Florida Statues explains how people who apply to the Florida Statewide Medicaid Managed Care Long-Term-Care Waiver Program are prioritized and enrolled.
Applicants are given a priority rank, based on their assigned priority score, which signifies the assessed need for long-term care services and determines placement on the HCBS wait list (maintained by the Department of Elder Affairs). The priority score is provided by the Department of Elder Affairs’ screening, which is conducted per FAC Rule: 58A-1.010. Priority is determined by Florida Statutes, 409.979, per the priority score calculation methodology by DOEA.
The higher the score, the more frail the Medicaid applicant is deemed to be, which results in a higher priority placement on the waiting list.
Once DOEA has completed their screening, they will provide the applicant (or their authorized representative) notification of the Medicaid applicant’s priority rank, where this places them on the waiting list, how to get in touch with a local ADRC, how to request a fair hearing if they feel an error has occurred, how to request a copy of their screening/priority score, and instructions for how to request a re-screening should there be a significant change (i.e. deterioration) in their condition.
Medicaid Long-Term Care Waiver Program Priority Score Ranks
When CARES conducts it assessment, they asks the following questions:
CARES Caregiver Questions
Is there a primary caregiver? If not, who does the applicant live with? (living alone assigns higher priority points).
If there is a primary caregiver, how is the caregiver’s health in relation to their ability to provide care to the applicant? How confident is the caregiver in their ability to continue to provide care in the future?
CARES Medicaid Applicant Questions
Overall health? How is their health compared to a year ago? What physical problems prevent Medicaid applicant from doing things that they would otherwise do? Can applicant get medical care when it is necessary? Are there financial limitations in obtaining necessary medical care?
Does Medicaid applicant have any problems with activities of daily living - ADLs (i.e. bathe, dress, eat, use bathroom, transfer, how much assistance needed to walk)?
Does the Medicaid applicant need assistance with what CARES refers to as “instrumental activities of daily living”: to handle heavy chores, light housekeeping, using the telephone, managing their money, preparing meals, shopping, managing their medications, and do they have access to transportation?
Each series of questions has a point scale associated with the answer. The points are added up to assign a priority rank:
• Rank 1 = Score 1-15
• Rank 2 = Score 16-29
• Rank 3 = Score 30-39
• Rank 4 = Score 40-45
• Rank 5 = >46
• Rank 6 = (when a minor is aging out, but still needs services)
• Rank 7 = Imminent Risk (when an applicant in community is unable to care for themselves, has no access to a capable caregiver, AND they are likely to require nursing home care in the next 1-3 months). See Medicaid Attorney Resources section below for link to the actual questions and point value.
Once a Medicaid applicant has been released from the waitlist, the Agency for Health Care Administration (AHCA) will enroll them into a long-term care managed care program in their area.
Medicaid Managed Care and Long-Term Care Managed Care Program
Florida Statues, Chapter 409, Part IV (409.961 – 409.985) governs the Medicaid Managed Care and Medicaid Long Term Care Managed Care Program.
409.963. Agency for Health Care Administration is the state agency authorized to manage, operate and make payments for medical assistance for services related to Title XIX (Medicaid).
409.965. All Medicaid recipients (subject to several exceptions) must receive their Medicaid services through a managed care program.
409.966(2). Sets forth the Medicaid regions. (J) Region 10 is Broward County. (K) Region 11 is Miami-Dade and Monroe Counties.
Most of Part IV sets forth the requirements for plans, what accreditation they must have, what minimum standards they must meet, etc…
409.969. Sets forth when Medicaid recipients must enroll in a managed care plan (30 days, followed by 90 days in which to dis-enroll and find another plan, after 90 days, “good cause” must be shown to switch plans).
409.973. Sets forth minimum benefits that managed care plans must offer.
409.978. Long-Term Care Managed Care Program.
409.979. Eligibility: 65 years old+ or 18 years old with disability. Must go through Comprehensive Assessment Review and Evaluation for Long-Term Care Services (CARES) screening program to determine that nursing facility care is required (see 409.985(3)). Subject to the availability of funds, the Department of Elderly Affairs (DOEA) makes offers for enrollment subject to wait-list prioritization.
The DOEA maintains the statewide list for enrollment for HCBS through the LTC-MCP (long term care managed care program).
DOEA authorizes aging resource centers to screen individuals requesting HCBS through the LTC program.
409.98. Long Term Care Plan Minimum Benefits. Nursing facility care, some ALF services, hospice, adult day care, medical equipment, supplies, incontinence supplies, personal care, home accessibility adaptation, behavioral management, home-delivered meals, case management, OT, PT, ST, RT, intermittent nursing, skilled nursing, medication management, nutritional assessment, caregiver training, respite care, transportation, personal emergency response system.
409.983(4). CARES assigns the Medicaid recipient one of the following levels of care:
• Level 1: must be placed in nursing home
• Level 2: imminent risk of nursing home placement (need for constant availability of routine medical and nursing treatment and who require extensive health-related care and services because of mental or physical incapacity.
• Level 3: imminent risk of nursing home placement (need for constant availability of routine medical and nursing treatment and who have a limited need for health-related care and are mildly mentally or physically incapacitated.
409.985. CARES Program. CARES determines if individuals requires nursing facility care and if so assigns the level of care described in 409.983(4) above.
409.985(3)(a)-(c): “Nursing facility care” is defined.
Medicaid Lawyer Resources
Rule 59G-4.193 - How Florida Waiver / managed care priority works
Rule: 58A-1.010 – Program Forms
Florida Statutes, 409.962, 409.979
Legal Incapacity Planning
Everyone should have a plan in place on what their wishes are and who is to carry them out in the event of incapacity. Incapacity has many guises, Incapacity can result from a stroke, a heart attack, Alzheimer's disease, dementia, psychoses and other mental illnesses, coma and many other forms. Below are the essential legal documents that are needed to protect the legal rights of yourself and your loved ones if an incapacity event should occur.
The Durable Power of Attorney
In a Durable Power of Attorney, an individual names a person (called an agent or attorney-in-fact) to manage the individual's financial affairs and execute legal and financial documents on behalf of the maker. Unlike a regular power of attorney, the durable power of attorney survives the incapacity of the maker. Thus, the attorney-in-fact can manage the financial affairs of the maker even after the maker has been stricken. In Florida, there was a dramatic change of law in October of 1995. Any person with a durable power of attorney executed prior to that needs to have the document redone. Further, Florida recently enacted a new Durable Power of Attorney statute effective October 1, 2011, whereby certain "more critical" powers must be specifically initialed in the affirmative for the agent to have those "critical powers". Your Florida Durable Power of Attorney documents executed before October 1, 2011 are still legally valid; however, ambiguity in the statute makes it strongly advisable (in my opinion) to at least always have your out-of-state Durable Power of Attorney documents redone. Furthermore, if in the future you feel that it may be necessary to protect your assets from a nursing-home-spend-down, it is strongly advisable to have your older Durable Power of Attorney documents reviewed by an elder law attorney. The Durable Power of Attorney is a powerful document. It is a license to sign your name. Keep this document in a safe place and only give it out when it is absolutely necessary.
If you do not have a Durable Power of Attorney in place, consider the consequences. Upon your incapacity, a spouse or loved one will not be able to access any asset in your name alone or sell an asset with your name on it. While most couples believe that all their assets are in joint name, they never consider that to sell a car jointly owned requires both signatures. Thus, if one spouse is incapacitated, the well spouse may be unable to sell the second car for much needed funds. Additionally, consider that pensions, social security, IRAs and 401(k)s are all only in one spouse's name. Individuals with revocable living trusts need to consult their trust documents to find out when the successor trustees can take over in the event of incapacity of the initial trustee (grantor) because the attorney-in-fact has no control over those assets.
If you don't have this document and wish to access an incapacitated's assets on their behalf, you most likely are looking at having to do a guardianship.
The Designation of Health Care Surrogates
By designating a health care surrogate in this document, the maker nominates an individual to make health care decisions on behalf of the maker should the maker become incapacitated. The designation of health care surrogate acts much the way a durable power of attorney does except that it only applies to health care decisions and not financial affairs. If an individual is unable to give informed consent due to incapacity, the hospital or doctor will look to the health care surrogate to make the decisions on behalf of the incapacitated individual. If you do not have this document, Florida Statute provides a pecking order of individuals who can make decisions for your. First is your guardian, if any. Second, is your health care surrogate, if any, Then your spouse followed by your children. Then your parents followed by your brothers and sisters. And so on. In the case of couples who live together and are not married, this can be a major source of friction between families. Second marriages are sometimes a problem as well. Note that the first in line is a guardian. This may not be your spouse! Only a circuit court judge can select a guardian for you.
The Living Will
The living will protects loved ones and health professionals from having to make hard decisions or even going to court should the maker suffer from a variety of incurable and costly medical ailments: terminal illness, brain damage, coma, etc... The living will spells out the wishes of the maker with regard to treatment should these ailments or conditions exist. In doing so, this document protects loved ones and valuable estate assets. The Florida Statutes were amended in 2001 to carry new definitions. This may affect living wills already in place. If you do not have this document, then your wishes may have to be proven from statements that you have made in the past. Putting your wishes in writing protects you and your loved ones. Before a living will can be utilized, two physicians must certify in writing that certain conditions exist.
The Declaration of Pre-Need Guardian
If a guardianship proceeding is initiated, the declaration of pre-need guardian spells out who the maker wants to be the maker's guardian. In this document, the maker designates a guardian of the person (healthcare) and a guardian of the property (financial). The designation of pre-need guardian allows the court to know the maker's wishes as to the choice of guardian and creates a legal presumption in favor of that person. The only person who can select a guardian for you is a circuit court judge. If you do not have this document and more than one person seeks to be your guardian, a contested guardianship could occur. Do not rely on the judge to make the choice you want. Put it in writing. Each of the above documents has a special form and witness requirements (including a notarization for some). Consult with an elder law attorney for the preparation of the documents. If you have one, check and make sure you are covered. Additionally, if you are from out-of-state, please consult with a Floridan Elder Law attorney to make sure your documents are valid in Florida. All the listed documents should be kept in a safe place. A copy of the designation of health care surrogate and living will should be put in your medical records so as to notify your health care providers. Prior to executing legal documents, a durable power of attorney should be recorded in the county records. Finally, the pre-need guardian declaration may be kept safe with the clerk of the court in much the same way a will can.
Guardianship
Guardianship is a lengthy and expensive process whereby a circuit court judge selects a person to manage your health care (guardian of the person) and financial decisions (guardian of the property). The first step in a guardianship is to determine whether an individual is incapacitated. A special medical, psychological and geriatric care examining committee will examine the alleged incapacitated person (AIP) and report back to the court. The court will appoint an attorney for the AIP during this process should the AIP not have one. If the court finds that the AIP is wholly incapacitated, the court will strip them of their rights and vest them in a plenary guardian of the person and property. Some AIPs can be found to only be partially incapacitated. In that event, only some or few rights may be vested in the guardian. If two or more individuals seek to be guardian, then the guardianship becomes contested and a trial must take place (unless they are co-guardians). As you can imagine this is quite time consuming and costly. Finally, once a guardian is appointed annual accountings and guardianship plan reports to the court are required. The documents listed above, can be utilized without a formal court process and can save the AIP much time and cost. A guardianship can be avoided. If a guardianship is needed, consult with an elder law attorney for assistance.
