Medicaid Myths and Truths

Medicaid Myths and Truths

Medicaid Myths and Truths, Attorney Amy Eddy

The cost of nursing home care can be substantial, leaving many people wondering when Medicaid will cover long term care costs.  Medicare only covers a small amount of nursing home costs under limited circumstances.  As a result, many seniors will rely on Medicaid, provided they meet the financial eligibility requirements.  Below are some common “myths” about Medicaid eligibility.

Myth: You have to give away everything you own in order to qualify for Medicaid.

Truth: If you need nursing home care for other than a short-term rehabilitative stay, you will be expected to pay the private pay rate unless your assets are below a certain threshold as follows:

  • A single applicant must have under $2,000 plus exempt assets;
  • A married couple who both need care must have under $3,000 plus exempt assets;
  • A married couple with one spouse who needs care and one spouse living at home can keep between $50,000 and $154,140.*

Exempt assets include a vehicle, personal property, a funeral trust, and life insurance if the death benefit is less than $1,500. If an applicant for Medical Assistance is married, the residence is not a countable asset as long as the spouse is living in it, and the retirement assets of the spouse in the community are also exempt.

 

Myth: You will be penalized for five years if you give anything away to qualify for Medicaid.

Truth:  Not exactly.  If you give money or property to your children, or to anyone else, you will be temporarily disqualified from Medicaid eligibility if the gift was made within five years of applying for Medicaid. The recipient of the gift is not required to return the money or property, nor are they otherwise liable for your care costs. The gift is called a “divestment” under the Medicaid rules.

  • “Divestment” is the disposing of assets for less than fair market value. If an applicant for Medicaid has divested assets within five (5) years of applying for Medicaid, a disqualification period may result, which means that the institutionalized person will be ineligible for Medicaid for a period of time. The penalty period is calculated by dividing the total divested amount by the statewide average nursing home cost of care (currently $315.61 per day)* in effect at the time of the Medical Assistance application. This number is the number of days of disqualification.
  • The start date for the period of ineligibility will be (in most cases) “the date on which the individual is eligible for Medical Assistance under the State plan and would otherwise be receiving institutional level care . . . but for the application of the penalty period.” 42 U.S.C. §1396p(c)(1)(D).

 

Myth: You may give $18,000 to each of your children as a way to protect it from the nursing home and it will not be a “divestment.”

Truth. Divestment includes transfer of any assets without any dollar limit. Assets are defined as “all income and resources of the individual or the individual’s spouse, including any income or resources which the individual or such individual’s spouse is entitled to but does not receive . . .” 42 U.S.C. § 1396p(e)(1).  The $18,000 gift amount is the amount that is exempt from gift tax reporting in 2024.*  There is no exempt amount for a divestment.

 

Myth: A revocable trust will protect your assets from the nursing home.

Truth. If income and principal are available to the Grantor, the assets in the trust are available to pay for nursing home care and are not protected. A special needs trust can be used to protect the assets of a disabled individual who is now receiving public benefits, or who may become eligible for benefits in the future.

 

Myth: If you are married and your spouse is in a nursing home, he or she can qualify for Medicaid if you put all of your joint assets in your name.

Truth: Assets are counted, regardless of which name they are in. Furthermore, Marital Property Agreements are disregarded for Medicaid purposes.

 

For answers to more Medicaid questions and concerns, consult with one or our experienced attorneys who practice in elder law and disability planning.

*Amounts change annually and are listed in this Article as of June, 2024.

On The Road Again

On The Road Again

Car accident out of state

If you are traveling out of state and are injured in an automobile accident due to the fault of another, you may have many questions, including where a claim should be brought, whether you will need a local attorney, and what your rights to recovery are. Your first step should be to alert your automobile insurer so the insurer is on notice of coverages under your policy that are or may be implicated.

For example, the at-fault driver may have insufficient automobile liability limits given the nature and extent of your injuries. If you carry uninsured and underinsured motorist coverage on your automobile policy, your insurer should be on notice of the potential for such a claim. In addition, you likely carry some amount of coverage for medical bills related to the collision under your automobile policy. You will want to establish a claim with your insurer and, provide your insurer’s information to health care providers for billing purposes.

When it comes to legal representation, consulting with an attorney back home may be useful in several respects. First, they may be in a better position to research and recommend local counsel in the state where the collision occurred. Second, you may find yourself in a dispute with your insurer at some point, particularly if an underinsured motorist claim arises. These claims are contractual, meaning that the venue is Wisconsin rather than the state of the collision. Third, given the nature of your injuries, you may require extensive and ongoing treatment following your return home. An out-of-state attorney may desire some involvement from Wisconsin counsel to assist in gathering medical bills and records and coordinating the testimony of treating providers should the case proceed through litigation.

Finally, should your personal injury claim turn into a formal lawsuit, you will undoubtedly find yourself in the legal system of the state of injury. However, your lawyers may have the option of bringing your case in Federal as well as State Court due to the citizenship of the parties. An attorney from the state of injury can discuss the pros and cons of Federal Court versus State Court given their knowledge of the local bench, potential jury pool, and other factors.

If you have an out-of-state automobile accident and require an attorney, please contact our experienced personal injury attorneys to assist you.

Don’t be a victim twice!

Judicare Mediation Services

Judicare Mediation Services

Judicare Mediation

Our firm receives many calls regarding small claims cases. One issue that immediately becomes a problem is that small claims are limited to damages under $10,000. Legal fees a client pays to us will cut into those damages very quickly, without any guarantee of a court win. This can make it difficult to fiscally justify being hired onto a small claims case. 

Recently, Judicare opened a free mediation program for small claims cases in Portage County. If you go to a small claims return date, you will see Judicare mediators milling about waiting to help people try and solve their disputes without further litigation. 

Their website says “Even if you have not yet filed a lawsuit, you can still request Judicare to mediate a dispute between you and another party.” This makes their services incredibly valuable because you may be able to resolve a dispute before you begin to incur any court fees. 

There are certainly cases that have long-term effects or are more legally complex and should involve a lawyer. Mediation requires the other party to participate, and so there are plenty of cases that cannot be solved through mediation simply because of the parties involved. But, if you are considering filing a lawsuit in Small Claims Court in Portage County, it may be worth your time to contact Judicare to see if they can help mediate your dispute before you or the other party start paying court or legal fees. 

Please go to the Judicare’s website for more information. If you are in another county, check Judicare’s website to see if they offer this program in your county. https://www.judicare.org/mediation/

Are They Really Faster and Cleaner?

Are They Really Faster and Cleaner?

Faster and cleaner, Daniel Schmeeckle, Lawyers Where You Live, article

In October 2020, the Department of Energy (DOE) adopted a rule defining a new dishwasher class as “standard residential dishwashers with a cycle time for the normal cycle of one or less from washing through drying.”[1] Not long after passing the 2020 Dishwasher Rule, the DOE created an analogous rule creating new classes of “top-loading clothes washers and consumer clothes dryers” having a “normal cycle time of less than 30 minutes.”[2] Then, in January 2022, the DOE repealed the 2020 Dishwasher Rule and 2020 Laundry Rule (the “Repeal”). Consumer Reports took note:

“Not so long ago you could count on most washers to get your clothes very clean. Not anymore. Our latest tests found huge performance differences among machines. Some left our stain-soaked swatches nearly as dirty as they were before washing. For best results, you’ll have to spend $900 or more.” (Italics added).

 

“What happened? As of January, the U.S. Department of Energy has required washers to use 21 percent less energy, a goal we wholeheartedly support. But our tests have found that traditional top-loaders, those with the familiar center-post agitators, are having a tough time wringing out those savings without sacrificing cleaning ability, the main reason you buy a washer.”

 

A group of states, led by Louisiana (state motto: “Union, Justice and Clean Laundry”) sued to overturn the repeal and to return to the halcyon days when clean laundry was king. Don Henley, who made a living on the evening news, summed up the sentiment of the suing states:

                      You don’t really need to find out what’s goin’ on
                      You don’t really wanna know just how far it’s gone
                      Just leave well enough alone
                      Eat your dirty laundry

The DOE and the states aired their dirty laundry in front of the United States Court of Appeals for the Fifth Circuit. In favor of speed cleaning, the Fifth Circuit noted:

Appliances including dishwashers, clothes washers, and clothes dryers with faster normal-cycle completion times that also maintain cleaning and drying effectiveness, such as dishwashers that complete a normal cycle in one hour or less, are desirable in the bunkhouse setting. Such features are beneficial and productivity enhancing, since they would permit faster washing and completion of additional cycles during the workday.[3]

The States argued that the DOE’s repeal actually had the opposite effect of what was intended – higher efficiency: “They make Americans use more energy and more water for the simple reason that purportedly ‘energy efficient’ appliances do not work” requiring the use of more energy and water to “preclean, reclean, or handwash their stuff before, after, or in lieu of using DOE-regulated appliances.”[4] The evidence presented to the Fifth Circuit showed that “dishwasher cycle time has increased from around one hour at the advent of DOE’s conservation program to around two and a half hours in 2020.”[5]

In a 25-page opinion, the Fifth Circuit ultimately found that DOE’s Repeal was “arbitrary” and “capricious” and sent the matter back to the DOE for further proceedings. To come to this opinion they looked at the connection between the facts found and the decision made. They argue that the DOE does not have the authority to regulate water usage and that the DOE did not consider the negative consequences of re-washing, pre-washing, and hand-washing clothing. In trying to conserve water and make machines more efficient, these new rules have had the opposite effect.

The next time you are considering purchasing a dishwasher or clothing washer, be sure to look at the overall functionality of the machine. Do not be swayed by the “more efficient” fast cycle terms.

[1] See Establishment of a New Product Class for Residential Dishwashers, 85 Fed. Reg. 68723 (Oct. 30, 2020) (the “2020 Dishwasher Rule”).

[2] See Establishment of a New Product Class for Residential Clothes Washers and Consumer Clothes Dryers, 85 Fed. Reg. 81359 (Dec. 16, 2020) (the “2020 Laundry Rule.”) .

[3] Louisiana v. United States DOE, No. 22-60146, 2024 U.S. App. LEXIS 507, p. 7-8 (5th Cir. Jan. 8, 2024)

[4] Id. p. 14.

[5] Id. p. 15.

National Health Care Decisions Day

National Health Care Decisions Day

National Health Care Decisions Day, Estate Planning

National Healthcare Decisions Day (NHDD) is celebrated each year on April 16th. Founded in 2008, the mission of NHDD is to encourage and empower people to begin or continue conversations about their wishes for care through the end of life.

Wisconsin is one of a minority of states that does not have a “family consent” law. This means that unlike other states, if you become incapacitated as an adult, no one in your family (including your spouse, parents, adult children or anyone else) has the legal right to make healthcare decisions for you. In this scenario, a legal guardianship typically must be established through the court.  

However, by signing a Healthcare Power of Attorney, you can name someone to handle your healthcare decisions in the event that you become unable to make these decisions. Everyone over the age of 18, who is competent to make one, should sign a Healthcare Power of Attorney and name both a primary and alternate agent to handle their healthcare decisions. You should make sure your primary and alternate agents are people you feel confident will follow through with your directives and be sure to communicate to them your values and desires for your healthcare.

In addition to a Healthcare Power of Attorney, you may also sign a Declaration to Physicians or a “living will.”  This document sets forth guidelines for withholding or withdrawing medical treatment from you in certain end-of-life scenarios. A living will is a declaration directly to your physician, while a healthcare power of attorney authorizes your agent to make healthcare decisions on your behalf.

Finally, it is important to be aware of the Health Insurance Portability and Accountability Act (HIPAA) and its impact on accessing your protected health information. The major focus of this law is to provide patients more control over their protected health information. The law prohibits disclosure of protected health information without your consent or authorization. You should consider signing a HIPAA authorization form allowing the release of your protected health information to the individuals you have named as agents in your Healthcare Power of Attorney. This will ensure they can access the necessary information to make informed healthcare decisions on your behalf.

Please feel welcome to contact our experienced attorneys at Anderson O’Brien, LLP to learn more about advanced planning for your healthcare decision-making. Let’s make everyday a Health Care Decisions Day!

What is Elder Law?

What is Elder Law?

We are often asked What is elder law? While the definition of “elderly” is the subject of some debate, the most common defining point is someone who is 65 years or older, as that is when federal Medicare benefits begin. Elder Law, much like “Family Law” or “Employment Law” is an umbrella term for a broad-based area of law.  For Elder Law attorneys, this consists of multiple areas of practice that relate to older adults, individuals with disabilities, and those who care for seniors and disabled individuals, including:

  • Health Care and Legal Capacity
  • Public Benefits (e.g. Medicaid and SSI)
  • Special Needs Trusts
  • Long Term Care
  • Asset Protection and Nursing Home Planning
  • Wills, Trusts, and Powers of Attorney
  • Probate and Trust Settlements
  • Guardianship and Conservatorship

The term Elder Law can be somewhat confusing because most Elder Law Attorneys also focus on solving legal problems for individuals with special needs, regardless of age.

The National Elder Law Foundation (NELF) defines Elder Law as follows:

“Elder Law” is the legal practice of counseling and representing older persons and persons with special needs, and their representatives about the legal aspects of health and long-term care planning, public benefits, surrogate decision-making, legal capacity, the conservation, disposition and administration of estates and the implementation of their decisions concerning such matters, giving due consideration to the applicable tax consequences of the action, or the need for more sophisticated tax expertise.”

NELF is the American Bar Association-approved agency that certifies attorneys as a Certified Elder Law Attorney (CELA). There are less than 15 CELAs in the state of Wisconsin. To become a CELA one must have enhanced knowledge, skills, experience, and proficiency in the field of elder law. The attorney must complete an exam and be certified by the National Elder Law Foundation Board. Attorneys must complete 75 hours of continuing education in the elder law field every five years.

If you or a family member require an elder law or special needs law attorney please contact our office.