When to Drop your Medicare Advantage Plan

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An article in Forbes Magazine released last week sums it up wisely: “Older Americans say they feel trapped in Medicare Advantage Plans.” Medicare Advantage plans, also called “MA” or “Part C,” are a heavily advertised class of privatized Medicare-type insurance plans. The government pays a private insurance company a lump sum they have allocated to your care, and the insurance company provides the insurance coverage that Medicare otherwise would. That insurance company can charge additional premiums, and limit you to their provider network, but they can and normally do incorporate additional benefits, such as prescription drug coverage, dental, and vision.

Medicare Advantage plans are attractive because of their ease and similarity to employee coverage that adults are familiar with. You get once card, and you use that for everything. However, as Medicare recipients age and their medical needs grow, they are often subjected to the flip side of what seemed like a good value: Denials of expensive surgeries or treatment residents, and denial or early disapproval of rehabilitation coverage following a hospital stay or surgery. Where Medicare typically defers to medical providers and rehabilitation specialists on what procedures are needed and how long rehabilitation services continue to be appropriate, private insurance companies actively look for reasons to deny or terminate coverage of professionally recommended services. That, and specialized care (or sometimes not so specialized) can be denied in practice due to bottlenecks in any company’s approved provider network.

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Handling Alzheimer’s During the Holidays

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Christmas dinner with great-grandmother.

Having a parent or loved one with any form of dementia in never easy.  It comes with a continual sadness over the loss of the person you once new.  The holidays can be a particularly difficult time to deal with this reality, but that is nothing compared to the difficulty you may fear by having your loved one visit during this season.  With that in mind, I’m posting the following quick guide to make these experiences easier on the both of you.

1. The General Rules Still Apply

There are some best-practices employed by elder care providers, and these should be continued while your loved one is in your care.  This is particularly important when visiting you because the environment may seem foreign to your loved one, increasing anxiety as well as the risk of disorientation.  These practices include:

  • Sticking to your loved one’s regular routine as much as possible
  • Being mindful of hygiene, but also respect your loved one’s privacy
  • Allowing your loved one do the activities that they can ordinarily do with safety
  • Avoiding being domineering or expressing frustration, where possible

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Five Things To Know About Probate…Before Probate

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It has long been my practice to send executors and administrators of estates numbered letters preparing them for the different stages of the probate process. Letter 1 would be about setting up the estate, Letter 2 about documenting and caring for the estate’s assets, and so on. But I have realized over time that probate has a few quirks no reasonable person could be expected to know, and also that many mistakes are made before the probate court even opens an estate. On top of that, it can be easy to get into probate without understanding where a lawyer’s time goes, or the mindset and approach you should take to make the estate go smoothly and close on time. After all, most people know that they should tally their prescription bills and charitable donations before they see their tax preparer, if they want to be cost effective, but you’d be forgiven for not realizing that probate works the exact same way.

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IRS alert: Economic Impact Payments belong to recipient, not nursing homes or care facilities

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Economic Impact Payment check from the US Treasury

In a press release this week, the IRS confirmed that the $1,200 pandemic stimulus payments (officially called “Economic Impact Payments” under the CARES Act) received by nursing home residents remain their property. Under long-standing Medicaid law, income tax refunds follow special rules that treat these as an asset that can be spent over the following YEAR by Medicaid recipients without any penalty to their Medicaid benefits. It is not considered income paid as “applied income” to a nursing home and it does not count against the $1,600 resource limit so long as it was spent – but not given away, normally – over the year following receipt.

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BREAKING: Connecticut to Begin Transferring Skilled Nursing Residents for COVID-19 Protection

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March 30, 2020: This Afternoon, the CT Department of Public Health (DPH), in conjunction with the Long-Term Care Ombudsman, announced plans to temporarily designate select nursing homes within the state as COVID-positive and COVID-negative skilled nursing facilities.

This plan will allow facility residents who have tested positive to receive more concentrated skilled care, to have access to more skilled health professionals and equipment at their facility, while maximizing the change that those who have tested negative are at minimal risk of contracting COVID-19 during this wave of infection. However, accomplishing this plan means that many nursing home residents, including those who have not been tested for COVID-19, will be temporarily relocated to other facilities.

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MEDICARE ALERT: Nursing Home Rehabilitation Benefits Expanded for Medicare Recipients in Response to COVID-19

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MEDICARE ALERT: Nursing Home Rehabilitation Benefits Expanded for Medicare Recipients in Response to COVID-19
Medicare Card & Nursing Home

A new cog in the federal response to the Coronavirus outbreak are some changes in how individuals on traditional “straight” Medicare can qualify for nursing home rehabilitation.

Medicare rehab coverage is provided under Part A hospital insurance, with two key provisions being that (1) seniors are only eligible for rehabilitation after a 3-night stay in a hospital as an inpatient, and (2) nursing home rehab is limited to 100 days per hospitalization period.

Federal Medicare administrators recognize that hospital and nursing home beds will likely become limited commodities in the coming weeks. That means some who should have hospital care will be denied in favor of needier patients, and some who would benefit from facility-based rehab will not be able to access it, possibly becoming more infirm due to the lack of intervention. In light of this, the Medicare Administrator issued a “special finding” that waives both of these limitations, in most cases.

SNF [skilled nursing facility] care without a 3-day inpatient hospital stay will be covered for beneficiaries who experience dislocations or are otherwise affected by the emergency, such as those who are (1) evacuated from a nursing home in the emergency area, (2) discharged from a hospital (in the emergency or receiving locations) in order to provide care to more seriously ill patients, or (3) need SNF care as a result of the emergency, regardless of whether that individual was in a hospital or nursing home prior to the emergency.

In addition, we will . . . provide renewed coverage for extended care services which will not first require starting a new spell of illness for such beneficiaries, who can then receive up to an additional 100 days of SNF Part A coverage for care needed as a result of the [COVID-19] emergency.

Seema Varma, Administrator, Centers for Medicare and Medicaid Services

If you are worried about yourself or a loved one having access to services, the situation is highly in flux at the moment, but we stand ready to answer your calls and questions with the latest information at (203) 871-3830 and are available for videoconferencing and teleconferencing on several common platforms.

Nursing Home Visitation Heavily Restricted for COVID-19.

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Nursing Home Visitation Heavily Restricted for COVID-19.
Novel Coronavirus
Simulation of coronavirus particles.

Over the past week, there have been conflicting reports and governmental orders regarding visitation of residents in nursing homes. This was clarified March 13, when CMS (the federal medicare/medicaid regulator) issued new guidance to nursing homes nationwide. Namely, they have ordered that all visitation of nursing home residents is prohibited, with two exceptions: outside health care professionals, and limited visitation for resident’s who are actively dying or receiving hospice/palliative care. Additionally, group activities such as recreation and communal dining have been suspended.

In furtherance of this, the Probate court has suspended all proceedings that require hand-delivered notices or hearings conducted at facilities. Mostly this means new applications for conservatorship for people presently located in nursing homes, and applications to make nursing home care permanent (change of residence). It is still unclear how these will work with respect to deadlines imposed by law.

One important thing to know, however, is that just because you cannot see your loved one does not mean that you are unable to participate in their care. These rules do not change the requirement that facilities provide quality care, or develop a plan of care on a quarterly basis, with your input. It only means that conferences and reviews need to be conducted through telephone and records exchanges, rather than talking and looking in person.

We understand this change is particularly concerning for loved ones of seniors who have recently moved to a facility for rehab purposes. It is tough not being able to see their progress in person, or to know if or how quickly they will return home. You should also expect that, because facilities will have to exclude both personal care and licensed staff as an abundance of caution, and at a minimum it will be even harder than it normally is to get the responsiveness and communication by phone you may desire. But there are certain levers you can pull to get what you need, and my office is ready and able – by phone, paper, and video conference – to answer questions and help those who feel they need an advocate on their side.

Your House is a Medicaid Money-Laundering Machine! (so maybe don’t give it away)

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Many clients come to me, sometimes even before retiring, asking me to help them give their homes to their children to “protect it from Medicaid.” They are the lucky ones who haven’t already done so through a friendly paralegal or attorney who did not ask important questions or give important advice.

There are some benefits and also a number of risks to giving away any real estate, but especially your home and especially if you do not keep a life use. I will discuss the practical and tax concerns of this in another article, but for the time being I would like to focus on one of the single biggest issues that folks are unaware of: if you have money you want to protect for yourself from Medicaid, owning a home can actually make it easier to do it!

You see, “money” is a dirty word for Medicaid: if you want help with your care, you have to be pretty much out of it (a healthy spouse can keep a bit, but not that much). But while you can’t have money, they will ignore your home, even a nice and pretty expensive one, so long as you or your spouse reside there. If you receive in-home care, an increasingly popular option, they don’t touch your house. If you go into your nursing home and your spouse remains at home, they don’t touch your house. You can even go into a nursing home for up to six months after Medicare Part A coverage expires, and Medicaid will give you an allowance to pay your mortgage, taxes, and insurance while you are away!

If you have money and need assistance with your care, Medicaid will ask you to spend that money (ideally on that care) before they’re willing to pay a penny. But if you also have a house, you can use the money to pay off your mortgage, make the house more accessible, upgrade the kitchen, add central air, or build an extension, and Medicaid will pay right away. You can also buy a house from not owning one at all to spend down that extra money, and save the cost of rent. Even more stunning, Medicaid’s definition of “your house” is much closer to “the plot your house is on and all of the land and structures you own that touch it.” There are actual recent examples of seniors who have used their savings on an adjacent plot of land, or have bought an apartment building and let their relatives occupy other units rent free. And the state HATES THIS. But they legally have to approve you for benefits.

While you can put money into your house, you can also take money out of it without being disqualified from benefits. So-called “reverse mortgages” often get a bad rap due to misunderstandings by consumers and also some bad practices that took place before the federal government began supervising and insuring the process. In reality, reverse mortgages are fair and useful vehicles in many circumstances, whether or not you have Medicaid. But if you do have Medicaid, the State of Connecticut offers you a bonus: if you take money out of the house through a reverse mortgage, they pretend you don’t have it, so long as you keep it in its own “segregated” bank account until you spend it.

So in summary: a man with $50,000.00, a house, and serious daily care needs have to pay for his care until only $1,600.00 of that money is left. But if the same man puts that money into home improvements, or a bigger house, or paying off a mortgage, he will be eligible right away. And if he borrows the same money right back out through a reverse mortgage, he won’t have to spend any of it on his care. Like the title says, it’s legal money-laundering.

To be clear, this is not a perfect solution. Nothing with Medicaid is. There are also caps, exceptions, and exclusions to many of the legal rules I have summarized in this article. At the very least, I hope by reading this you will understand that multiple considerations in protecting assets for your children as well as for your own use, and a conversation with a qualified elder law attorney is essential before making such a big decision so that you are fully informed of the different scenarios that could take place, and what these mean not just for your future wallet, but for your future care and quality of life.

Attorney Rosenberg practices throughout South-Central Connecticut. He can be reached at 203-871-3830 or by email at Scott@ScottRosenbergLaw.com.

Rosenberg Firm Wins Appeal; Case Selected for Publication

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We are excited to announce that Attorney Rosenberg has been selected to present a paper in the CT NAELA Practice Update based on his appeals court victory in Harborside Conn. Ltd. Partnership v. Witte earlier this year. Practice Update is the official journal for our state’s chapter of the National Academy of Elder Law Attorneys, the nations preeminent education and advocacy source for the practice of elder law.

In the Harborside case, the nation’s largest nursing home chain sued the widow of a former resident for her husband’s outstanding bill. Since neither of them had signed a contract, the nursing home claimed they were entitled to collect the debt directly from the widow because she had managed the family finances, paid the bills, and received insurance checks in the past. When this claim was thrown out of court without a trial, the nursing home appealed. In a split decision, the Appeals Court upheld the dismissal of the suit, siding with the brief of Attorney Rosenberg and lead appeal counsel Miguel Almodóvar. The court ruled that the nursing home only had a debt with the decedent, and could only recover it by filing a claim with his probate estate. Because this decision comes from the appellate court, other judges may now be required to throw out similar lawsuits in the future.

Ordinarily, spouses are jointly responsible for their housing and necessary medical expenses, but both state and federal laws require a spouse to volunteer through a written document in the case of nursing home care.

The published paper, Anatomy of Harborside v. Witte, may be downloaded here.

What a Power of Attorney Actually Does

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Powers of Attorney are a major tool in every estate planner and elder law attorney’s toolkit, and the concept has been fairly well ingrained in our cultural lexicon. Perhaps it’s because of that that it never ceases to amaze me how frequently misunderstood they are. It shouldn’t be surprising that a properly informed client does not translate to properly informed children a decade or two down the road, and yet, when my colleagues and I then try to set the record straight for family members, they do not want to believe us.

I have given some thought to what the easiest, proper explanation of a power of attorney is, and if I was pressed to boil it down to a single sentence, I’d go with the following:

A power of attorney is a document that allows an individual to share with another person their own ability to manage their money and property and make legally binding agreements on their behalf to the extent specified in the document.

However, since my goal is to provide a well-rounded discussion in these blog posts, and there’s no shortage of space, I’d like to break down a few key parts of that definition for those who are interested.

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