In my last blog, we discussed enrollment and service delivery in an MLTC plan for home care and community services through Medicaid.  Remember that services will always be effective as of the 1^st of a month.

Once the Medicaid application is accepted, if MLTC enrollment occurs after the 15^th of the month, the NYS contract agency (Maximus) will process the paperwork from the MLTC company to begin services the month following your enrollment date creating a ‘gap’ of about one month or longer.  Remember that calling the MLTC plan to schedule the screening is called a ‘referral’ and is not enrollment.  My office begins to educate you about MLTC company options before the application is accepted for Medicaid so you can be ready to enroll.

What if you will need care 24/7?

If you require a live-in (sleep-in) aide or split-shift care (multiple aides in shifts), a detailed plan of care must be developed to present to the MLTC plan representative during your enrollment.  My office can work with you and your physicians to create the care plan before your Medicaid application is submitted.  This is particularly critical for insulin-dependent and G-tube consumers.  

As of this blog posting, it is not likely the MLTC program will be able to service this need through a licensed contract agency (the typical home care agency with certified aides). 

Instead, either the family can be trained to manage these tasks; or, you may need to use the CDPAP program within an MLTC plan.  The CDPAP program – Consumer Directed Personal Aide Program – means you are hiring the aide (who must be a citizen or have legal residence status) and training the aide.  The aide must register with a CDPAP program under the MLTC plan.  Medicaid pays the aide through the MLTC plan.

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Thinking of using a non-legal advisor to help you apply for Medicaid?

Listen up: It is now more critical than ever before to consult with a qualified elder law attorney before you apply for Medicaid.

Why?

New York State law makes it illegal for a non-lawyer to give you legal advice for:

• Preparation of the Medicaid application when that includes legal advice on transfers of assets, and tax consequences
• Use of the pooled trust for excess income (for seniors) or a pay back supplemental needs trust for excess income or resources for disabled persons under age 65.

After the Medicaid application is accepted, what can you expect? 

If personal care services will be necessary for more than 120 days, and you live on Long Island, Westchester, or NYC and its boroughs, you must enroll in an MLTC (Managed Long Term Care) plan – unless you will enroll in a “Lombardi” plan, also called “nursing home without walls” or TBI (Traumatic Brain Injury) waiver program.

My previous blog outlined the questions to ask about the plans you are considering. For clients of my law office, we provide advice and counsel on plan selection, and we either attend the screening meeting in your home or prepare you for that meeting with the selected MLTC company.

Enrollment and service delivery in an MLTC plan will always be effective as of the 1^st of a month. Once the Medicaid application is accepted, if MLTC enrollment occurs after the 15^th of the month, the NYS contract agency (Maximus) will process the paperwork from the MLTC company to begin services the month following your enrollment date (in essence, you will have a ‘gap’ of about one month). Remember that calling the MLTC plan to schedule the screening is called a ‘referral’, but is not the actual enrollment.

What can be done if there will be a ‘gap’ in MLTC services?

My law office works with our clients to ensure services begin promptly through other strategies, such as use of the spend down program or the pooled trust to cover adult day care and transportation. We can also help you engage with a CHHA (Certified Home Health Agency) for personal care services during the gap, if skilled care or nursing care is needed. 

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Mandatory enrollment in an MLTC plan has arrived on Long Island.  For new Medicaid applicants for home care and adult day care services, my office is counseling and advising our clients in the selection of an appropriate plan after the Medicaid application has been accepted by the local Medicaid office.  For past clients of my office who currently receive ‘traditional’ Medicaid home care (personal care aide), consumer directed aides (CDPAP) or Lombardi, notices from the NYS Department of Health have been mailed as a ‘heads up’ to a second notice requiring selection and enrollment. 

To help you through this process, I suggest you ask the following types of questions about an MLTC plan:

• How long has the company been in business and served Long Island? A track record serving NYC and its boros is not always a good measure for L.I., where transportation is needed to travel to a facility and home health aides are scarce.
• Since care coordination is the hallmark of MLTC, is the care manager an RN or LPN and is he or she employed by the MLTC plan, or, contracted to an outside agency?
• What is the ‘track record’ for approval of the care and services discussed and the actual plan of care approved by the MLTC company? Pose this to the enrollment liaison at your home meeting. Note that all MLTC plans must provide the same areas of core services (adult day care, home care, non-emergency transportation, and coordination of Medicare delivered services including contracts with CDPAP agencies). 
• What is the ratio of care manager to consumers for the MLTC plan?  Generally, a ratio of 1:35 maximum (one care manager to 35 patients) is acceptable. 

Ask these questions and others that are also important to you.  If you are already receiving Medicaid home care, don’t be afraid to call the state agency listed on the letter you may have already received.  New York Medicaid Choice must answer your questions about whether your home care agency, CDPAP agency or adult day care program is contracted with an MLTC plan.

But be careful.  In our experience, the representative from Medicaid Choice may try to enroll you by telephone before you have spoken with an MLTC company. 

Get ready for the in-home assessment and interview before enrollment.  NYS has created a standardized semi-annual assessment of members called SAAM at http://www.health.ny.gov/health_care/managed_care/mltc/pdf/mltc_saam_ver_2_1_5.pdf.  You will find it helpful to read through the assessment with your family member’s care and health needs in mind, including a list of doctors, specialists and medications.  For our existing clients, my office can arrange to attend the meeting with the MLTC representative in your home during screening.

Coming in my next blog – What happens after Medicaid for community and home care has been accepted?

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If your spouse, parent or family member is receiving personal care services (“PCA” on Long Island) or is enrolled in self-directed personal care (“CDPAP”), you will or have already received a letter from the NYS Department of Health introducing managed long term care (MLTC) and the upcoming enrollment process.

Enrollment will be mandatory after you receive a second notice of enrollment, and the Medicaid recipient will then have 60 days to enroll.

Today’s blog is about our guidance on how to respond to the letter currently being mailed.

First, do not panic when you read the letter. It is confusing.

Why? Because little information is provided other than an explanation of three broad types of plans available to your senior relative.

Here is what you need to know: 

1. MLTC (Managed Long Term Care) Medicaid Plans combine Medicare for seniors and persons under age 65 with disabilities receiving Social Security Disability income and delivery of Medicaid services. What does this mean to you? The plan pays for Medicaid services only because coverage of doctors, rehabilitation therapies at home, and certain supplies are paid for by Medicare. This will generally be the best type of plan to select because you will be able to keep your own Medicare doctors and specialists through Medicare Part A and B, and prescription drug plan (whether Part D or through private employee retiree plan). You may also keep your supplemental ‘gap’ insurance policy for payment of co-pays to physicians who do not accept full Medicare payment or do not accept Medicaid. 
2. Medicaid Advantage Plus permits you to use only doctors and specialists within the plan selected (in the ‘network’) because private health companies contract with Medicare to provide your Part A (hospitalization) and Part B (health insurance, rehabilitation) services and prescription drug coverage.  Medicaid services provided through this plan are required to meet the same minimum of core services as MLTC plans [see above]. If you enroll in Medicaid Advantage Plus, you must also enroll in Medicare Advantage. This is important to know: if your doctors are not in the Medicare Advantage network, you must select new doctors. The impact of enrollment in this type of plan may not be known until nursing home care is needed. Stay tuned – we will keep you posted.
3. PACE (Program of All-Inclusive Care for the Elderly) is similar to an HMO for Medicare and Medicaid. All care must be delivered through the plan’s network of physicians, labs, home care agencies, etc. At this time, only one Long Island company is registered to provide PACE services, and the PACE plan is only open to persons age 55 and older. The program must arrange or coordinate all in-patient hospital and doctor services, as well as admission to a nursing home. Who benefits from a PACE enrollment?  Most likely, a senior who does not have family or friends who can coordinate their medical care, appointments, and home care.

My next blog will discuss how to select an MLTC plan.  

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Ask any senior where he or she wants to live as they age, and they will likely say they want to stay at home and receive care there for as long as possible.

While assisted living is an attractive option for many seniors – particularly those who enjoy socializing – it may not be viable for frail seniors or for those who do not have the finances to pay the fees.

How can you get ready for home care?  Like all Medicaid planning, it’s best to get ready before you need to apply for Medicaid. I suggest you follow these steps:

• Identity: Have your identify information collected (Social Security card, Medicare card, supplemental insurance card and policy). If a document is missing, contact the source agency now to request replacements. 
• Financials: Retain at least 1 year of financial information and keep it up to date (although we recommend saving 5 years of financial information). Currently, for home care applications, the most recent 3 months of financials are required.
• Property: Keep or purchase a copy of the deed for your property from the county clerk and keep a current real estate tax bill. If you rent your home, keep your lease or other rental agreement in a secure place.
• Taxes: Even if you don’t file income tax returns, you still receive 1099’s and 1099R’s each year. Save those forms with your banking or other financial information.
• Health care: Keep a list of your doctors, their contact information and your medications. Currently, NYS permits seniors to join a nonprofit community (pooled) trust organization to legally shelter income in excess of a permitted amount (approximately $800/month). Medical forms must be completed to be certified by Medicaid for use of the trust. If you have been hospitalized, ask for and keep a copy of your discharge summary which lists diagnoses. Explanations of Benefits (EOB) from your insurance company can also be useful. 
• Transfers: As of 2013, there are no transfer penalties (no ‘look back’) for transfers made in order to qualify for home care (but there are transfer penalties for Medicaid nursing home programs). Be sure you keep all paperwork in connection with all transfers; if you worry about having legal capacity to make transfers, you will need a financial Power of Attorney that permits your agent to make those Medicaid gifts. A qualified elder law attorney is a must-have.

Home care services – personal care aides, physical and occupational therapy, and other services – were designed by Medicaid to help seniors remain in their own homes as long as possible. Planning on your part is still essential. Contact my law office if you are considering home care services through Medicaid.   

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In 2010, I discussed in this blog a New York State Surrogate’s Court case called Mark C.H.

In that case, a parent with a developmentally disabled (nonverbal) young male child had established a special needs trust (SNT) and, knowing her death was imminent due to cancer, placed her son in a residential program. The mother’s long-time attorney agreed to serve as 17A guardian and as co-trustee, with JP Morgan Chase Bank, of the inherited special needs trust. 

The crux of this case and the Surrogate’s 2010 decision, was the sad realization that in the two years following his mother’s death, a $3 million trust had not been used for Mark, and neither the trustee – including JP Morgan Chase – nor the guardian, appeared to know what Mark’s special needs might be.

Significantly, neither trustee had tried to determine Mark’s special needs nor to hire an expert to inform them. The Surrogate’s Court had determined that the trustees did not exercise even a reasonable degree of diligence towards the beneficiary – although they paid themselves commissions – and “failed to take the steps necessary to keep themselves fully informed of beneficiary’s residential situation and ancillary services.”

On December 31, 2012, the case returned to Surrogate’s Court. The decision is significant not only for its report of success in the use of the trust funds for Mark C.H., but for all parents in similar situations who ask, “How do I know the trustee I designate will do what they are supposed to do?”

If you search the Internet for the phrase ‘Letter of Intent’, you will find samples of this non-legal document which helps parents describe their wishes for their disabled child or adult after their own death – including religious, social and housing preferences.

But remember that this is not a legally enforceable document and should be considered more of an organizational tool. Be wary, as well, of legal fees someone may try to charge you for this document, which does not require an attorney. 

In Mark C.H., and sadly in other cases as well, the trustee tried to argue that it owed no direct legal duty to the beneficiary. But this Surrogate Court rejected that argument. And, in a strongly worded decision, added, “The legal consequences… should provide a clarion call for all fiduciaries of trusts whose beneficiaries are known to have disabilities to fulfill their ‘unwavering duty of complete loyalty to the beneficiar[y]’. ”

The advantage of your estate planning with an inherited special needs trust is that your goals and information, which might have been expressed in a letter of intent, can be drafted by an experienced lawyer into a will or any trust, becoming an enforceable obligation against the trustee of the special needs trust. 

Better, still, you might consider a requirement that the trustee of the SNT – whether family or corporate, such as a bank – retain a professional or nonprofit with particular expertise in your child’s specific impairment, to advise the trustee on the needs of and services for the disabled person. Then, regardless of impairment – physical, developmental, or mental illness – there is a legal obligation for the trustee to act appropriately.

You may also want accountability – particularly in larger trusts – by the trustee. But if the beneficiary is intellectually impaired, who is watching the ‘hen house?’ – the issue raised in the first Mark C.H. case. In that situation, your estate planning documents can direct the person to whom an accounting must be delivered for review.

Special needs planning as part of your estate requires an experienced legal practitioner. Contact my office to arrange a consultation.

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Elder law (or, what my parents call ‘elder care law’) means that family members and their senior parents or loved ones must do an annual ‘assessment’. 

What is that?  It means open and honest conversations about not only health, safety at home and well-being for aging, but also transparency about financial needs, and, in some cases, paying for care to keep the senior at home. My own family discusses this each year – both seriously and with a sense of humor. Here are the important tips to review:

1) Basic identification. Make sure financial information and personal data are kept in a safe place in the home. Tell your family where this data is and provide them with keys or passwords (so critical in this e-age), as needed to access the data. For a death certificate, your children or other designated family members will need to provide your exact birth date, social security number, both parents’ full legal names and mother’s maiden name.

2) Burial wishes. Although many families dismiss this as an unpleasant topic, it still must be addressed. Section 4201 of the NYS Public Health Law – Appointment of Agent to Control Disposition of Remains – permits you to place your burial wishes in writing and designate an agent to carry out your wishes. Even in the most loving families, the decision for cremation, in particular, may cause strong disagreements. If you are selecting cremation, remember to tell your family or agent specifically where you want your ashes scattered or disposed – and write down your instructions in exact detail.

3) Legal documents. Review all of your legal documents – powers of attorney, health care proxy, burial wishes, wills, trusts, etc. – to make sure your documents are still valid and enforceable, and that they express your current wishes. Disputes of access to finances is the #1 reason families end up in court – during a senior’s lifetime or, after death. If you have power of attorney for finances that requires your agents to act together, make sure that the titling of your assets also requires this. You don’t want an agent on a power of attorney to bypass his or her duties and responsibility to a joint agent simply because his or her name appears on the account. This can cause litigation between family members, particularly if there is secrecy. Remember also that no changes can be made by hand to your own legal documents, including your will. Any changes must be typed and notarized to be enforceable. Make the time to properly update your legal documents to save your loved ones undue stress and distress after you are gone. 

4) Cash. If you are concerned about your family not having adequate cash to pay your immediate estate or burial expenses, consider opening a separate bank account for a family member entitled ‘POD’ (payable on death) or adding a designated family member as co-owner for your own account. I urge you to discuss this decision with your entire family so no one person mistakenly accuses another of overreaching or illegally influencing you in selecting who controls the cash.

5) Keys to the kingdom. Give someone in your family an extra key to your home or tell them where your spare key is ‘hidden.’ Make the same arrangement for the extra key to your bank safe deposit box, in order to avoid expensive fees if the bank has to open the box after your death.   

6) Smile – Laugh. Remember to keep your sense of humor throughout this potentially distressing planning process. To relieve the tension of our discussions, my parents and I spent time laughing together about some of their decisions. No one, not even this elder law attorney, wants to be reminded of their parents’ aging and difficult future decisions. But a pinch of humor helps.

If you have questions about putting together a plan for your family, please call my office.

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The year 2012 has brought its ups and downs for many, including those affected by this past October’s Hurricane Sandy. 

If you are, or have been, a client of my law office and the legal documents we prepared for you were ruined or destroyed as a result of hurricane damage to your home, please contact my office. At no charge to you, we will arrange to meet with you to discuss creating duplicate originals or attorney-certified copies.  This special courtesy is good through January 31, 2013.

This year also saw changes in elder law, estate and special needs planning. The following overview summarizes the important changes that may affect you and your family:

-        In 2011 New York legislation was passed proposing to recover against assets owned by a Medicaid recipient, including deeds with retained life estates – in addition to estate assets, after the death of a Medicaid recipient.  That legislation was repealed.

-        The Office of Persons with Developmental Disabilities (OPWDD) submitted an “1115” federal waiver, called the People First Waiver, to introduce managed long term Medicaid for persons with developmental disabilities.  That waiver was amended and broadened to include the more flexible federal 1915(b) and (c) waivers for the delivery of home and community based services.  The process is pending approval by the federal agency CMS; OPWDD continues to develop its protocols and services with input from advocates and consumers. Demonstration roll outs are expected in 2013.

-        NYS Medicaid began its transition to Managed Long Term Care Medicaid (MLTC) to control the cost of delivery of services to seniors and persons with disabilities in the community as well as those in institutional settings. Long Island and other parts of NY State have watched as residents of the five NYC boroughs were required to enroll in managed care plans. The options are confusing.  Advocates are keeping a close eye on the process; preservation of sufficient home care services for seniors and persons with disabilities; and long time legal rights including aid continuing (if a notice of discontinuance of service levels is received and a hearing to challenge is requested), and ‘Medicaid pending’ for receipt of home services while the Medicaid application is being processed by the local Department of Social Services. Now, more than ever, it is critical to seek legal counsel for your legal rights if you reside in NY State.

-        Spousal refusal (the right of a spouse to refuse to contribute to the cost of care of their Medicaid spouse) remains legal in NYS. 

-        Community-based Medicaid programs such as Lombardi (skilled nursing and services at home), Traumatic Brain Injury (TBI Waiver), Consumer Directed Personal Assistance Program (CDPAP), and Medicaid Buy-In for Working Persons are expected to continue in 2013.  Current enrollees will not be required to enroll in MLTC, but this may change in the future.

-        The look back period for Medicaid chronic care services (typically nursing home care) remains 60 months (5 years) from the last transfer.  Note that even small sums transferred by you or your spouse may be considered a ‘gift for the purpose of qualifying for Medicaid’ unless you can provide valid proof that another purpose was intended.

-        NYS legislation restores funding for EPIC (the state program which assists lower income seniors enrolled in Medicare-required drug prescription programs); the restored program will pay the co-payments only.

-        As of this writing, it is not known if Congress will pass legislation affecting inheritance taxes.  Bush-era tax laws are due to expire and would lower the federal applicable credit (the amount which can be inherited without taxation) to $1 million from its current $5.1 million (more for couples with proper estate planning in their wills or trusts).  NYS continues its applicable credit of $1 million. Flexible estate tax planning – often called Disclaimer Credit Shelter wills (or trusts) remains the best option for married couples.  It’s also important to consider additional tax planning strategies such as life insurance owned by a life insurance trust.

-        Remember that living trusts, alone, do not eliminate nor reduce estate taxes without proper tax planning provisions.

-        Keep in mind that your loved ones with disabilities will continue to benefit from your estate planning with an inherited special needs trust (SNT).  The inherited SNT does not have to be a separate, stand-alone document but can be part of your estate planning wills or trusts. 

 

We wish you a happy and healthy holiday season.

Beth Polner Abrahams, Esq.

Naomi Levin, Associate Attorney

Hinda Wolfenson, Paralegal 

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In past blogs, I have discussed managed long term care (MLTC) Medicaid, its introduction in New York City and the boroughs, and the expected start on Long Island in 2013. MLTC will change the way services and care will be delivered, but not the financial and income rules to qualify for Medicaid for nursing home and home care services.

As the “NYC experience” unfolds, we have learned a lot from observation of that process and advocacy. Here is what you can expect if you live on Long Island or are in NY City but have not yet applied:

1. Current personal care/home care Medicaid recipients will receive a notice informing them that they will have to join a managed long term care plan and the date by which enrollment must occur. My readers should reference prior blogs – the law does not currently require Medicaid recipients enrolled in Consumer Directed Personal Care Aide Program (CDPAP), Lombardi, Traumatic Brain Injury Waiver (TBI Waiver), and Private Duty Nursing to enroll. Urgent: Read #2.
2. When you receive the first letter or notice, do not jump to enroll in a MLTC plan! This is because rights to retain existing services (live-in care or certain levels of care or hours) during the initial transition to managed care (sometimes called ‘aid to continue’) will only be available to persons who enroll after receiving the second notice to join a MLTC plan. Remember to be patient!
3. Seniors and the disabled using CDPAP, Lombardi, etc., may only be required to enroll in MLTC after the counties (in which they legally reside) establish their plan for continuity of care. The purpose is to prevent a gap in services, and in some instances, a change of home health care aide staffing.  Further, each managed care plan (the provider) will also be required to submit a plan for identifying the means by which continuity of care will be assured in programs besides personal care services.   The provider requirement is supposed to be a prerequisite for the provider to participate in ‘auto assignment’ – that is, the automatic but arbitrary enrollment or assignment of the senior or disabled consumer into a MLTC plan if he or she fails to enroll in a plan in the required period.  

More details coming in future blogs. My law office is committed to bringing you up-to-date information about changes in law and how we can advocate for you and your family, and to providing quality legal representation in the ever-changing field of elder law.  

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We move this week into a discussion about Medicare, following my recent blogs on Medicaid (a program for health care for low income and disabled persons) and managed long term care Medicaid.

Who is eligible for Medicare?

At age 65, all persons, regardless of income or assets, are eligible for Medicare. In addition, permanently disabled persons under age 65 are also eligible for Medicare.   

What does Medicare cover?

Medicare pays for outpatient care from doctors, specialists, nurse practitioners and LPNs, hospital stays, rehabilitation in a skilled nursing home facility, nursing care at home, and therapies including physical, occupational and speech.

Are there any new developments regarding Medicare coverage?

Recently, an agreement was reached between federal officials and the nonprofit Center for Medicare Rights to make clear that Medicare coverage for nursing and therapy services does not depend upon proof of the ‘potential for improvement.” Instead, it depends on the individual consumer’s need for skilled care. 

What is the history behind this?

Medicare beneficiaries and legal advocates are familiar with Medicare’s practice of placing the burden of proof on the hospital consumer or patient to demonstrate a ‘likelihood of improvement’ before Medicare will pay for skilled care or continue skilled care in a rehabilitation facility after 20 days.  Most impacted are consumers who need skilled care at home and those who require physical or occupational therapy following a hospitalization for a fall, fracture, extended hospital stay, or diagnosis of a chronic disease.  To explain the denial or termination of Medicare coverage, medical professionals and nursing homes often used the terms ‘plateau’  or ‘stabilized’ or ‘not improving’.  When Medicare stops paying, the consumer must either privately pay for the needed care or therapy, or attempt to qualify for Medicaid.   

Most affected by this policy were persons with chronic diseases – multiple sclerosis, Parkinson’s disease, Alzheimer’s, stroke, and traumatic brain injury.  The nonprofit Center for Medicare Rights represented beneficiaries who challenged this practice, together with several other nonprofits.  One plaintiff beneficiary was an 81 year old woman with multiple sclerosis.  Medicare denied coverage for home health care visits and physical therapy on the grounds that her condition was not improving.  Without the services, it was alleged she would have to enter a nursing home. 

The settlement in the class action will require Medicare to revise its guidelines and manual to make clear that a ‘failure to show a likelihood of improvement’ is not the standard for denial or termination of benefit services. This is good news for many of my readers.

My law office is committed to bringing you up-to-date information about changes in law and how we can advocate for you and your family, and to providing quality legal representation in the ever changing field of elder law.  

We wish you and your loved ones a gratitude-filled Thanksgiving Day holiday.  

 

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