Transcript Securing Public & Political Will

Medicaid for Michigan
Long-Term Care
Residents
John B. Payne, Attorney
What About Medicaid?
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Payer of last resort
Covers medically necessary treatments
and services with no limit
Financial limits on income and assets
• $2,000 asset limit for LTC patient
• $20,880 to $104,400 asset limit for
Community Spouse
Medicaid
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Federally subsidized grant-in-aid for
low-income individuals and families; i.e.,
welfare
Varies from state to state
Covers medically necessary services
and most prescriptions
No cap on covered services
Stringent eligibility requirements
You Can Keep Some Property
And Get Medicaid
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Some property is “countable”
Some is “non-countable”
Home Is Exempt, But Planning May
Be Necessary To Avoid Estate
Recovery
Homestead Exemption
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$500,000 limit on home equity unless
occupied by spouse or dependant child
If over limit, home not exempt
Funds borrowed against home may be
exempt if not commingled
Home in trust is not exempt.
Prepaid Funeral
May Be Non-Countable
Final Arrangements
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Irrevocable Funeral Agreement, DHS8A, maximum $11,450
Burial Fund Exclusion, $1,500
• Not commingled
• Clearly designated
• Some retroactive effect
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Other Types Of Property Can Be Used
To Preserve Assets And Still Qualify
Toys
Jewelry
IRA Loophole
(in some states, other than Michigan)
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The Community
Spouse’s IRAs and
401(k)s are all
exempt!
You Can Give Assets Away
And Still Get Medicaid
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You can be disqualified for giving away
property--in some cases.
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What is given away?
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To whom?
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When?
Many Transfers Are Not
Penalized
You Do Not Have To Wait Five
Years After Giving Anything
Away To get Medicaid
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The penalty isn’t always five years long-sometimes no penalty at all!
Deficit Reduction Act
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Gifts subject to five-year look-back.
Penalty begins when donor is otherwise
eligible for Medicaid.
Example
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Rosco, a widower, is in good health when he
gives his grandson $25,000 for college. He
keeps $75,000 in savings. Three years later,
he suffers a stroke and enters a nursing home
at $6,500 per month. Four years and three
months after the gift, he runs out of money. He
cannot get assistance for a number of months.
Divide $25,000 gift by average cost of privatepay care in a nursing home.
More Deficit Reduction Act
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State must be beneficiary of annuity of
Medicaid recipient or recipient’s
community spouse to recoup Medicaid
benefits paid.
CCRC entrance deposits are no longer
protected as “homestead” assets.
Myth--You Can Keep Marital And
Inherited Property When Spouse Gets
Medicaid
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Husband’s and wife’s property get
lumped together for MA.
• Separated? No matter!
• Pre-nuptial agreement?
Ignored!
“Liberal” Community Spouse
Allowance
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Calculate "total joint resources" on the day
one spouse enters long-term care--the
"snapshot.“
Half may be retained:
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Minimum (in 2010) $21,912
maximum $109,560
Once institutionalized spouse is approved for
MA, community spouse's assets are no longer
counted.
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Community Spouse Spend Down
$250,000
$200,000
$150,000
$100,000
$50,000
$0
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Community Spouse Spend Down
$160,000
$140,000
$120,000
$100,000
$80,000
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$20,000
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CSRA
Community Spouse Spend Down
$300,000
$250,000
$200,000
$150,000
$100,000
$50,000
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CS RA
You Are Not Required To Spend Your
Assets Before You Can Get Medicaid
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You are not required to spend your
money to pay for nursing care.
There are ways to get MA while
preserving resources for your
spouse, your heirs, or worthy
causes.
Your Income Does Not Go For Your
Spouse’s Nursing Care If He/She Is
Eligible For Medicaid
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Federal law provides that none of
the community spouse’s income is
available to pay for care of the
institutionalized spouse who is
receiving MA.
Not All Of Your Spouse’s Income Is
Used To Pay The Nursing Home Bill
If He/She Is On Medicaid
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You may receive a portion of your
spouse’s income if your income is below
certain limits.
A state hearing officer or a judge may
order a greater allowance.
You Can Keep Some Property
And Get Medicaid
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Some property is “countable”
Some is “non-countable”
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You Do Not Have To Wait Five
Years After Giving Anything
Away To get Medicaid
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The penalty isn’t always five years -sometimes no penalty at all!
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Do Not Try To Hide Assets And
Become Eligible For Medicaid
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Intentional misrepresentation to MA is a
crime and can be costly--the IRS shares
information with the welfare department.
In addition to prosecution, you or
whoever applied may be required to pay
MA back.
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Caveat
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The agency's policies and procedures
must ensure that eligibility is determined
in a manner consistent with simplicity of
administration and the best interests of
the applicant or recipient. 42 C.F.R. §
435.902
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Battle of the Beds
Bedhold Charges, Deposits,
Discharges, and Due Process in
Nursing Homes
Bed Deposits
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Medicare and Medicaid providers
prohibited from charging Medicare
beneficiaries for services that are eligible
for payment by Medicare
Bed Deposits (cont'd)
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In general, nursing homes are not permitted to
require a deposit or prepayment for skilled
nursing after a qualifying three-day
hospitalization.
A deposit may not be required where the
resident has applied for Medicaid.
Notice Of Medicare Termination
Before End Of 100 Days
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Notice of Medicare Termination is issued
by the facility, without consulting
Medicare.
Patient should respond to the notice with
a request for "demand bill“ so facility
would not be allowed to bill until a
determination of Medicare coverage is
Medicare, itself.
Involuntary Discharge
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Transfer and discharge regulations apply
if any residents participate in Medicare
or Medicaid.
No exclusion for facilities that have
designated themselves as offering
"respite care," "subacute care," "shortterm rehabilitation," or "Alzheimers care."
Legitimate Grounds For
Discharge
1)
2)
Transfer or discharge is necessary for
resident's welfare and resident's needs
cannot be met in the facility
Resident's health has improved
sufficiently that resident no longer
needs services provided by the facility.
Legitimate Grounds For
Discharge (cont'd)
3)
4)
5)
6)
The safety of individuals in the facility is
endangered
The health of individuals in the facility
would otherwise be endangered
The resident has failed, after due notice,
to pay or have Medicare or Medicaid
pay, or
The facility ceases to operate.
Contesting Discharge
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Payment requirements for a resident
who becomes eligible for Medicaid after
admission to a facility, are limited to
allowable charges under Medicaid.
Facility may not discriminate against
Medicaid recipient.
Contesting Discharge (cont'd)
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Common Rationale:"the resident's needs
cannot be met in the facility"
• Often reflects facility's desire to specialize in a
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particular type of patient or care--e.g.,
Alzheimer’s, respite or short-term
rehabilitation
Reform Law, Medicare and Medicaid do not
support such distinctions
Contesting Discharge (cont'd)
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There is no basis for a discharge simply
because the resident may now require
long-term custodial care rather than
rehabilitation, or no longer qualifies for
Medicare-covered skilled care.
Contesting Discharge (cont'd)
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Every nursing facility "must provide
services to attain or maintain the highest
practicable physical, mental and psychosocial well-being of each resident" ... "in
such a manner and in such an
environment as will promote
maintenance and enhancement of the
quality of life of each resident."
Contesting Discharge (cont'd)
Discharges Based on Behavior:
 Residents face discharge because of
difficult behaviors that may be
manifestations of dementia.
 This is type of need facilities are
supposed to be able to address.
Contesting Discharge (cont'd)
Nurse’s aides are required to be trained and
tested regarding care of cognitively impaired
including:
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Techniques for addressing the unique needs and
behaviors of individuals with dementia (Alzheimer’s
Communicating with cognitively impaired residents
Understanding behavior of cognitively impaired
residents
Appropriate responses to the behavior of cognitively
impaired residents
Methods of reducing the effects of cognitive
impairments.
Contesting Discharge (cont'd)
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A facility must provide services according to
the Nursing Home Reform Law to the extent
needed to fulfill all plans of care:
Nursing and related services and specialized
rehabilitative services to allow or maintain the
highest practicable physical, mental, and
psycho-social well-being of each resident
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Pharmaceutical services
Dietary services
Ongoing program of activities
Dental services
Contesting Discharge (cont'd)
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Persons suffering from Alzheimer’s Disease
may not be excluded from nursing homes;
indeed, there may be no other facility to which
they can go.
Behavior that could pose a threat should be
addressed with better supervision, room
changes, adjustments to medications, or
efforts to address whatever irritants cause the
resident to exhibit the dangerous behavior.
Contesting Discharge (cont'd)
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A facility would be out of compliance if it
refused to provide a statutorily defined
service to eliminate certain residents.
Administrative hearing officers and judges
have ruled that even very disruptive and
potentially dangerous resident behavior is
insufficient justification for discharge.
The cost of care is not one of the six
legitimate reasons for discharge set forth in
the federal regulations.
Nonpayment and Change in
Payment Source
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Change to Medicaid is not legitimate
reason for discharge.
Be suspicious of claims that facility does
not have “Medicaid bed.”
Where the Medicaid application is in
process facility is barred from
discharging resident.
No discharge for termination or denial of
Medicaid during administrative appeal.
Nonpayment And Change In
Payment Source (cont'd)
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Facilities have obligation to notify
resident of the Medicaid application
requirements and procedures.
To discharge for nonpayment, facility
must document nonpayment and efforts
to collect
Resident has right to redeem and remain
up to date of transfer.
Procedural Protections
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Reasons for transfer or discharge must
be recorded in clinical record
• location to which transferred or discharged
• effective date of the transfer or discharge
Procedural Protections (cont'd)
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30-day written notice required unless:
• the health and safety of resident or other
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individuals would be endangered
the health of the resident improves sufficiently
to allow a quicker transfer
resident has been at the home less than 30
days
Procedural Protections (cont'd)
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Change in condition or behavior as basis
for transfer requires re-assessment, new
plan of care and notice.
Further reassessment is appropriate
alternative to eviction if new plan of care
is inadequate.
Facility’s failure to comply with any
requirement may be bar to discharge.
Procedural Protections (cont'd)
Discharge planning is required.
 Written discharge summary and postdischarge care plan must be developed with
participation of resident.
 Specification of types of care required after
discharge and may help prove resident's
needs can be met in current nursing home.
 For those transferred to a hospital, the nursing
home is required to provide written notice of its
bed reservation policies and allow priority
readmission
Procedural Protections (cont'd)
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In an involuntary transfer or discharge,
the “facility must provide sufficient
preparation and orientation to residents
to ensure safe and orderly transfer or
discharge.”
Orientation may include (according to
the Surveyor's Guidelines) “trial visits,
if possible, by the resident to a new
location.”
To Pay Or Not To Pay: The
Bed-Hold Dilemma
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Pressure to Pay
Familiarity of surroundings and a feeling
of control
Desire to return to same facility and
room
Expensive
Hospital–Nursing Home Cycle
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20 days of Medicare-covered skilled care
after three-day period of acute care
80 days of Medicare-covered skilled
care, with co-payment that many Medigap insurance policies cover
Hospital–Nursing Home Cycle
(cont'd)
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Provided there is a 60-day period off Medicare,
each time the patient has a period of acute
care of three days or more, the 20- and 80-day
limitations are reset.
Hospital stay is usually followed by 20 to 100
days of Medicare-covered skilled care.
After Medicare, patient recycles back to
Medicaid.
Pay Bedhold?
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After 3-day acute care, patient will be
returning as Medicare patient.
Medicaid pays 10- or 18-day holds,
provided the facility has 98% occupancy.
For longer absences, the patient has
priority for next available bed.
2011 Michigan Medicaid Limits
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Community Spouse Resource Allowance:
• Minimum: $21,912 Maximum: $ 109,560
Resource Allowance for an Individual: $ 2,000
Monthly Maintenance Needs Allowance:
• Minimum: $ 1,822 Maximum: $ 2,739
Monthly Personal Needs Allowance: $ 60
Shelter Standard: $ 547
Heating and Utility Allowance: $ 550
Divestment Penalty Divisor: $ 6,816
Home Equity Limit: $ 505,000
Irrevocable Funeral Contract: $11,466
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