Facing sky-high LTC costs, clients nurse Medicaid hopes

December 17th, 2012

But misunderstandings about the national program abound; poor planning can leave retirees in a bad place

By Darla Mercado,  Investment News

December 7, 2012

Medicaid may look like a tempting long-term-care plan for retirees who want to pass assets on to their heirs, but that approach has its share of financial pitfalls.

Investors nearing retirement are asking more questions about Medicaid — the state and federal program that aids people who can’t afford to pay their medical bills — and the role it can play in helping to cover LTC costs. Nationwide Financial Services Inc. and Harris Interactive Inc. polled 501 financial advisers and found that 42% think of Medicaid planning as a way to preserve money for their heirs.

“People are exploring extreme steps to qualify for a program that wasn’t intended for them,” said John Carter, president of distribution and sales for Nationwide. “Medicaid wasn’t ever intended for people who could pay for those long-term-care needs.”

Medicaid requires applicants and their spouses to meet certain income and eligibility rules to qualify for the program: For instance, monthly income cannot exceed the costs of long-term care, and applicants generally cannot hold more than $2,000 in assets.

Enter a variety of Medicaid strategies that “impoverish” the person applying for the program in a bid to get under the $2,000 limit. But Medicaid applicants face a five-year look-back provision for asset transfers.

About half of the advisers polled said that they’ve had clients ask them about giving all their money to their children to qualify for government assistance in paying for long-term care.

Much of that anxiety is driven by the shakeup in the LTC insurance business, as well as the fact that today’s economic realities place greater emphasis on preserving wealth, noted Bernard A. Krooks, founding partner of Littman Krooks LLP and past president of the National Academy of Elder Law Attorneys.

Clients who were unable to pass the underwriting process at an LTC carrier may be interested in Medicaid planning.

“If you have a prospect with an interest in preparing for this risk, and you can’t sell them the insurance, then that’s a perfect candidate to refer to an elder-law attorney,” Mr. Krooks said. “You can set up a trust or a planning opportunity to help them accomplish their objectives.”

Many misconceptions come with Medicaid planning, however, which is one reason advisers might want to consider seeking outside help. “We would encourage advisers to work with elder-law attorneys,” Mr. Carter said. “There can be a lot of risk if you do it on your own.

Mr. Krooks noted that a common misconception is that if clients miss the five-year look-back, they have no way to protect assets. “That’s not true,” he said, noting that the solutions are state-specific. “In all states, there are things you can do even if you waited until the last minute. It’s not going to be as beneficial if you had done it earlier; you may not be able to protect as much.”

Clients are also unaware that Medicaid covers nursing home care but typically won’t foot the bill for assisted living and other care options, according to Nationwide. Additionally, Medicaid patients have very little choice in where they end up residing, and they won’t have access to private rooms.

Though advisers are becoming increasingly aware of the need to educate clients on covering the cost of care in retirement — 72% agree that many clients don’t see how crucial it is to plan for health care costs in retirement — many advisers also come up short on other facets of planning for long-term care.

For instance, 60% of the participants said they couldn’t explain to clients how the Affordable Health Care Act will affect their retirement. Only 42% were aware of filial-responsibility laws, which are state rules that establish a legal duty for children to support their impoverished parents. Nursing homes and other third parties can pursue children whose parents end up in care and are unable to pay.

To visit the Investment News website, click here.

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Spend Time in Two States? Get Informed on the Laws

December 5th, 2012

Research can help avoid unwelcome surprises for you or your family

(as seen  in the Poughkeepsie Journal by guest columnist Bernard A. Krooks, Esq., Littman Krooks LLP)

We live in a mobile society, where it’s common to spend significant time away from home visiting the grand kids or escaping winter weather. New Yorkers comprise the single largest segment of Florida’s temporary residents, with many ultimately relocating on a permanent basis. But those address changes could complicate your estate planning, long-term-care arrangements and tax bill.

In general, if you spend183 days per year in a state, its residency laws kick in, so it’s important to keep track of calendar days. And if you decide to move permanently, you should check that the legal documents framed in one state will be recognized elsewhere.

Estate planning

The regulations governing trusts and advance directives vary throughout the country. Even a difference in the number of witnesses required to acknowledge a document can render it void. Doctors and hospitals have been
known to disregard the instructions contained in living wills and healthcare proxies that were drafted in another state. Banks could ignore directives from your designated financial agent. And it could be devastating to
the financial security of loved ones to discover that a relocation has rendered your prior planning invalid. If you have important ties to more than one state, be sure your estate planning documents explicitly describe
the situation. It’s also useful to consult legal counsel from the relevant jurisdictions. That ensures that advantageous differences in state law are considered, and it’s less likely that recent legislation will be overlooked.

Long-term care
Since Medicaid is often a major source of funding for long-term care, differing state guidelines could complicate a sudden, debilitating medical condition. Eligibility requirements, as well as covered services, often vary. In a
previous column, I discussed “filial responsibility” laws, which could potentially hold adult children responsible for their parents’ expenses. These are state-specific and evolving, so lapses in Medicaid coverage have the potential to result in big bills for the younger generation. Work through the scenarios with certified elder-law attorneys who can navigate the Medicaid systems of whichever states you or your parents are likely to call home in later years.

Taxes

Another possibility is that more than one state will hold you liable for income or inheritance taxes. Residency audits are increasingly common, and New York is especially aggressive, with taxpayers expected to provide documentation that establishes where they’re spending their time. Nor is that the sole determinant. You must take active steps to relinquish New York residency— possibly including the sale of real estate —in order to establish another domicile. For many couples, second homes and frequent travel represent a lifetime’s hard work and investment. With some forethought, you can ensure that your chosen lifestyle doesn’t have costly, unintended consequences.

Bernard A. Krooks, Esq.,  is managing partner of the law firm Littman Krooks LLP (www.littmankrooks.com; 845-896-1106), with offices in Fishkill, White Plains and Manhattan. His firm collaborates with Solkoff Legal, P.A., Delray Beach, Fla., on dual residency issues.

To see the complete article, click here. For more information about the Littman Krooks and Solkoff Legal Alliance, click here.

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Are Your Children Ready to Handle Your Estate?

November 20th, 2012
The facts are frightening: The majority of Americans over 65 are completely reliant upon their Social Security checks and an estimated 120,000,000 Americans do not have an up-to-date estate plan. Why do Americans lack the ability to plan for retirement? The National Association of Estate Planners and Councils and the NAEPC Education Foundation have teamed up with organizations all over the country this week, October 15-19 (National Estate Planning Awareness Week), to help Americans educate themselves to have a more secure retirement. With the right tools, estate planning can be for everyone, regardless of their net worth. Having a plan put in place can save you and your family money and time at an emotional time.  Analyze your situation and speak to a certified elder law attorney that will plan your retirement and work with financial planners that can help you develop a financial plan that will address your needs and give you a sense of security for the future.

Are Your Children Ready to Handle Your Estate?

Many parents spend a lot of time, energy, and money preparing estate plans intended to provide security for their children and grandchildren. While it’s common for parents to conduct numerous discussions with advisors in order to create a plan that will transfer their estate as smoothly as possible, they often neglect to hold similar conversations with their children.

When planning to pass your estate on to your heirs, it is important to consider how they might handle the new responsibility of receiving an inheritance. Parents may believe that the inherited estate will be used responsibly to help their children and grandchildren pay for furthering their education; to make it possible for one parent to stay home with young children; to ensure a secure retirement, or to be put to other responsible, sensible uses. The assumption that children share the financial values of their parents, however, may not be valid.  Many teenagers or young adults might prefer a sports car to a 401(k).

To communicate their values, may people write an ethical will, which basically states in a narrative form what is important to them and how their values were developed growing up and during their lifetimes.  By sharing your values with your loved ones, it is hoped that they will continue on with the next generation(s).  Many clients have shared with us that the ethical wills of deceased relatives are one of the most cherished and meaningful gifts they have ever received from a loved one.  In fact, several clients have saved the writings of loved ones for decades and they serve as an inspiration during challenging life situations.  There is no right or wrong approach to ethical wills; the words simply have to come from the heart.  Along with personal values and beliefs, we have seen clients share spiritual beliefs, hopes for future generations, life’s lessons, forgiving others, or asking for forgiveness, among many other themes.  After all, the money you leave will ultimately be spent; the values you impart may last forever.

While death and money are often uncomfortable subjects for discussion between parents and children, it is important to bring these topics up while you are alive.  Avoiding these conversations can jeopardize even carefully crafted estate plans.  To help ensure that your children are prepared, you may want to include them, if they old enough, in the process of planning.  The more they know about what to expect, the more prepared they will be.  Not only that, the more they know while you are alive, the less likelihood there will be problems when you are gone.  You will also want to let you children know where you keep important documents such as safe deposit box keys, birth certificates, passports, deeds, insurance policies, investment and bank statements, tax returns, Social Security numbers, and medical insurance cards and information.

Let’s face it: it is not easy for us to discuss money or legal matters with our family.  Many times, there are other issues involved such as relationships and control, which make it even more complicated.  But I ask you to ask yourselves the following question: would things be better or worse if something happened to me and I neglected to tell my loved ones what was important to me?  Remember, life passes by quickly.  In many cases, our lives are turned upside down in a matter of moments.  Take the time to discuss these issues.  You’ll be glad you did.

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State Jobs Go to Disabled Veterans Under New York’s 55-c Program

November 12th, 2012

Veterans with disabilities seeking employment in New York state should be aware of the Governor’s Programs to Hire Persons/Veterans with Disabilities, also known as the “55-c Program.”

Section 55-c of the New York State Civil Service Law allows the Civil Service Commission to fill up to 500 entry-level state employment positions with qualified disabled wartime veterans. These positions would normally be filled through a competitive examination process, but for qualified 55-c applicants, no written or oral examinations are required. However, a medical evaluation may be necessary to certify your eligibility for the program.

“Wartime veterans” refers to veterans of any branch of the U.S. Armed Forces who served full-time active duty during a designated time of war. These designated periods are:

Vietnam War

February 28, 1961 – May 7, 1975

Persian Gulf Conflict

August 2, 1990 – the date upon which such hostilities end

Hostilities in Lebanon

June 1, 1983 – December 1, 1987

Hostilities in Grenada

October 23, 1983 – November 21, 1983

Hostilities in Panama

December 20, 1989 – January 31, 1990

Eligibility for the program also requires that the applicant have a disability certified by the Employee Health Service (EHS) of the Department of Civil Service. The veteran may be required to undergo a no-cost physical examination by an EHS physician or an outside consultant. The disability need not be service-related in order for the veteran to qualify.

Recipients of Purple Heart medals and those who have been assigned a disability rating of at least 20 percent by the U.S. Department of Veterans Affairs automatically qualify for the program.

Disabled veterans seeking State employment are encouraged to apply for 55-c eligibility. Visit http://www.cs.ny.gov/dpm/c55.cfm to download an application or call the NY Department of Civil Service toll-free at 866-297-4356 if you have any questions.

For more information on elder law or veterans benefits, visit www.elderlawnewyork.com.

Source: http://www.cs.ny.gov/dpm/c55.cfm

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Preparing for Crisis and Disaster from an Attorney’s Perspective

November 6th, 2012

By Scott M. Solkoff, Esq.[1]

People with dementia thrive on routine.  When the normal calendar of life is disrupted by crisis or disaster, it can be upsetting to any person – but for a person with dementia, it can be a very real threat.  From my view as an Elder Law Attorney, having worked with thousands of families to plan for their future, I have learned some simple steps that can be taken now to prevent big problems later.

Crisis and disaster can strike in many ways.  In Florida, it can come ashore as a hurricane but can also be caused by a health event, the sudden loss of a caregiver, fire and other causes that could befall any of us.  What all of these events have in common is a major disruption in routine and an increased need for safety and communication.  Most people know to keep flashlights, batteries, a water reserve, canned food, a manual can opener and other such supplies on hand.  This should be done and a caregiver should make a list and check the home regularly.  If the subject of our concerns is in a facility, the caregiver should speak with facility personnel about provisions.  Each facility is mandated by law to have a disaster plan and the caregiver should be aware of that plan.  For example, if a facility has no power, is there a generator large enough to meet basic needs?  Where would your loved one be taken if the facility itself becomes unsafe?  Get the answers.

Access and communication is critical.  You must be able to establish your authority to act for your loved one.  As a caregiver, you should have copies, if not originals, of all important legal documents, most important among them being the durable power of attorney, any trust agreements and the health care surrogate designation.  If at all feasible, the elder should also have copies, even if suffering from significant dementia, of the health care documents.  My clients are supplied with “digital pocket vaults,” flash drives that we have fabricated to be about the size of a credit card and which are kept right behind the person’s drivers’ license.  If I have an incident and paramedics come, they must look in my wallet for my I.D.  Right behind my I.D., is this special “vault.”  As soon as it is plugged into any computer (e.g., in the ambulance or the hospital), my caregiver’s name and phone number pop up so that they can be quickly identified and contacted.  My health care surrogate designation and living will are also on the card.  Create some way to make these critical documents portable.  Put a noticeable sticker on the refrigerator (another place paramedics often look) with caregiver contact information.  You can even put a sticker on the outside of the fridge telling the paramedics to look in the refrigerator door for a copy of the health care documents, a common practice.  Some organizations provide “safe return” bracelets, a wonderful tool that allows anyone who finds your loved one to get him or her back to safety.

One of the most important safety devices is people.  Make sure you, as a caregiver, have people you can count on to do the simple task of knocking on your loved one’s door if you cannot reach them yourself.  Get to know at least one neighbor.  Call your loved one regularly to “check in.”  If there is no answer, do not panic.  There is more often than not a good reason.  If there is still no answer and too much time has passed, call that neighbor to go knock on the door.

To read more about elder law and estate planning, please visit www.elderlawnewyork.com.  Two of the nation’s leading elder law and special needs planning firms, one in Florida and one in New York, have developed a relationship to coordinate services and knowledge for people who have connections to both states. Solkoff Legal, P.A., of Delray Beach, Florida and Littman Krooks, LLP of Manhattan, White Plains, and Fishkill, New York are dedicated to helping seniors and individuals with special needs, along with their caregivers and their families, to read more, click here.

[1] Scott Solkoff is a Florida Bar board certified Elder Law attorney, co-author (with his father) of West Publisher’s national and state books on Elder Law, Past-Chair of the Elder Law Section of The Florida Bar and a Fellow of the American College of Trusts and Estate Counsel (ACTEC).  Scott practices Elder and Disability Law in Delray Beach, Florida.

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Changes to Long-Term Care and Home Care Services Concern New York Seniors

November 1st, 2012

The federal government’s new guidelines regarding long-term care will have long-lasting impact on seniors throughout New York State. The fed has recently instructed New York to make it mandatory for Medicaid beneficiaries who are 21 years of age and older in need of community-based long-term care services to receive Managed Long Term Care (MLTC).

The mandate also covers New York City residents and seniors with Medicare who have or expect to have home care services. Any seniors who are seeking home care services now have to apply through an approved MLTC vendor for a provider in the network. Prior to the new guidelines, a recipient was able to use any Medicaid-accepting provider.

As part of the change, applications will not be accepted at the Queens local Community Alternative Systems Agency (CASA) offices, a department of the Human Resources Administration for New York City, for Home Care, except in limited cases: Consumer-Directed Personal Assistance Program (CDPAP), Hospice, Traumatic Brain Injury (TBI) Waiver applicants or participants, Nursing Home Transition & Diversion Waiver (NHTDW) applicants or participants, and/or individuals who are  seeking Lombardi (long term home health care waiver program services).

Under the new system, managed care providers get a fee for the bundled services they offer. Critics are concerned that this new system may mean seniors will be forced to change their medical provider to one in the approved system and it may lead the providers to limit the quality of care as a cost-saving measure; seniors may be referred to other services such as nursing homes if it is determined by the managed care provider that home care services would be more expensive than they would prefer. There is growing concern that many seniors may require legal advocacy in order to prevent unwarranted nursing home referrals.

N.Y.C. Medicaid recipients will soon be receiving notification advising them to select a managed care provider within a 60-day window. If they fail to select a managed care provider, one will be chosen on their behalf.

Concerned New York-based seniors may wish to contact an experienced elder law attorney to ensure their healthcare issues are fairly represented and to get up-to-date advice to optimize their Medicaid benefits.

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LGBT Retirees Have Additional Estate Planning Concerns

October 16th, 2012

Members of the LGBT community tend to save more money for retirement than the population as a whole.  But LGBT seniors planning for retirement also face unique concerns.

According to experts, people in the LGBT community tend to be higher earners, and have smaller families, some with no children.  While lower family expenses may make it easier to plan for retirement, LGBT couples without children may also have to plan for additional caregiver costs as they approach retirement age.

Although same-sex couples may now marry in New York, the federal government does not yet recognize those marriages, and this creates complications for LGBT couples in terms of tax and estate planning.

As one example, estate taxes in 2013 will revert to a $1 million exclusion.  When a heterosexual spouse passes away, his or her assets over $1 million can usually pass to the surviving spouse without being subject to the tax, but this federal right does not apply to LGBT couples, married or not.

Social Security is another concern for LGBT couples, as spousal benefits are not provided to same-sex partners.  In addition, federal pension plans do not provide for spousal benefits.  LGBT couples must also be careful when moving property into joint ownership, as this can result in a large gift tax.

With careful estate planning, there are solutions to many of these issues.  LGBT couples planning for retirement would be advised to seek the counsel of a qualified estate planning attorney familiar with the unique needs of the LGBT community.

For more information about our estate planning and elder law services, visit www.elderlawnewyork.com.

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Assistance is Available for Struggling Seniors

October 10th, 2012

Seniors face many issues relating to housing, hunger, income, abuse and isolation. In the State of New York, The Office of Temporary and Disability Assistance is accountable for developing and overseeing programs that provide aid and support those that are eligible and need assistance. The programs mentioned below compliment the primary government benefits programs of Social Security, Medicare and Medicaid for seniors and people with special needs.

  • Energy Assistance: The Home Energy Assistance Program (HEAP) is a federally-funded program to assist people with low incomes with their energy expenses, including heating bills and some energy-related home repairs (HEAP can help those who are meet eligibility requirements pay for any of the following: electricity, propane, natural gas, wood, oil, kerosene, coal or any other heating fuel). In order to qualify for HEAP in New York State, you must need help with your energy bills and meet an income requirement.  A single person must have an annual income of less than $24,360.  Applications can be made at any social services office. To locate a social services office in your area, click here.
  • Housing Assistance: The Bureau of Housing and Support Services (BHSS) concentrate solely on the problems revolving around the homeless, at-risk, and low-income households in New York State. The Homeless Housing and Assistance program supplies capital grants and loans to not-for-profit corporations, charitable and religious organizations, municipalities and public corporations to acquire, construct or rehabilitate housing for persons who are homeless and are unable to secure adequate housing without special assistance.
  • Telephone Assistance: Low-income seniors may also qualify for assistance with their telephone bills.  The Lifeline program provides federal assistance for low-income older adults, for one telephone per household.  The program is available for landlines or cell phones, and you can apply directly through your telephone service provider. To be eligible, consumers must have an income that is at or below 135% of the Federal Poverty Guidelines or participate in a qualifying state, Federal or Tribal assistance program.
  • Food Assistance: The Supplemental Nutritional Assistance Program (SNAP) provides an Electronic Benefits Transfer (EBT) card, which can be used just like a debit card to purchase groceries at participating supermarkets and other retail food stores.  The program is available to people with low incomes, particularly seniors, and you can apply in person at your local social services office, or online at myBenefits.ny.gov. To find out if you are eligible for SNAP, click here.

To read a full list of supplemental benefit programs offered by the State of New York, visit:  http://otda.ny.gov/workingfamilies/. For more information about our elder law services, visit www.elderlawnewyork.com.

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Caring for Aging Parents Can Take a Village

October 2nd, 2012

According to Carol Bradley Bursack, author of “Minding Our Elders,” there is a lot to be said for routine. What many would consider one’s daily, mundane habits may also be the very thing that lets you know when one a loved ones needs assistance.

As the population ages and society continues to foster long-distance family relationships, it is uncommon for the adult children of elderly parents to live close by. If an elderly parent is in declining health and lives on his or her own, and the adult child lives an hour or more away, that adult child is considered a ” long-distance caregiver.” And when the only caregiver is far away, it often falls to everyday acquaintances – the bank teller, the dentist, the letter carrier – to notice when something is amiss. Those people, says Bursack, can become part of a long-distance caregiver’s community care network.

Bursack has strategy tips for how to develop community help for long-distance caregivers, including reaching out to regular delivery people, such as letter carriers, newspaper delivery people, and supermarket carriers. They can be asked to make contact if they note that newspapers are piling up or mail is uncollected. The same can be asked of service providers such as landscapers or house cleaners. There are also individuals that can be recruited who are trained to keep an eye on things, such as a visiting nurse or meal delivery person.

Linda Rhodes, author of “The Essential Guide to Caring for Aging Parents,” also suggests engaging the local community. She advises long-distance caregivers to exchange phone numbers with a parent’s neighbor. She also advises touching base with the parent’s local house of worship, and tapping into the volunteer community there to have someone do well visits.

Set up a phone tree. Share phone call days with other relatives, and have a strictly adhered-to schedule. If a caller cannot get hold of the parent or does not get a call returned, make certain the information is shared and can be followed up.

Consider the latest in technology – Skype and Facetime both allow virtual face-to-face interaction. Personal response systems can be placed in the home or even worn around the neck or wrist.  Motion-sensing systems can alert a monitor to a lack of movement in the home, and send an alert via computer or to a call center.

For more information about elder law, visit our website at www.elderlawnewyork.com.

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Can a resident of a nursing home with Medicaid benefits leave the facility for an overnight visit that is a non-hospitalization leave

September 24th, 2012

Medicaid planning can be very tricky – with Medicaid legislation in constant fluctuation, with policies, waiting periods and maximum asset/income levels becoming stricter – planning is crucial. Our Certified Elder Law Attorney®s at Littman Krooks have put together a new series of entries that address some of the more frequently asked questions we’ve heard about Medicaid:

  • Can a resident of a nursing home with Medicaid benefits leave the facility for an overnight visit that is a non-hospitalization leave?

Medicaid Guidelines regulate bed reservation policies at nursing homes. A leave of absence is defined as an overnight absence (such as a visit with relatives and friends) or a leave to participate in medically acceptable therapeutic or rehabilitative plans of care. A leave of absence is considered to be non-inclusive of hospitalization time. Under Medicaid rules, Medicaid allows for up to ten (10) days in a 12-month period of time for a non-hospital leave. Medicaid is reimbursed for ninety-five (95%) of the Medicaid rate, otherwise payable to the facility for the services provided on behalf of the person (DAL/DQS #05-13).

  • What if the nursing home facility provides the patient with a bed hold waiver form?

At many facilities, if a bed hold waiver form is not signed, a patient will be discharged and their room will not be held during a leave of absence. A bed hold waiver form, when signed, permits the nursing home to hold the patient’s room during any absence that the resident may have from the facility. However, oftentimes, signing this agreement gives the nursing home permission to bill the resident privately, along with the NYS tax assessment, for every day that the resident is absent. Residents should carefully read any agreements prior to signing.

  • What if a Medicaid-eligible resident’s leave of absence exceeds the number of Medicaid reimbursable days?

For Medicaid residents that do sign the bed hold waiver agreement, residents should not be charged for any absences as Medicaid should be billed for the days absent as long as the patient falls within the 10 day rule within 12 months. If a Medicaid-eligible resident’s leave of absence exceeds the number of Medicaid reimbursable days, the facility may charge privately to the bed holder. The Department does not regulate the amount charged. Residents should inquire if their nursing home is not seeking reimbursement from Medicaid for these charges.

Summary:

  • Medicaid allows for up to ten (10) days in a 12-month period of time for a non-hospital leave;
  • A bed hold waiver form, when signed, oftentimes permits the nursing home to hold the patient’s room during any absence that the resident may have from the facility;
  • For any Medicaid residents that do sign the bed hold waiver agreement, Medicaid should be billed for the days absent as long as the patient falls within the 10 day rule within 12 months;
  • If a Medicaid-eligible resident’s leave of absence exceeds the number of Medicaid reimbursable days, the facility may charge privately to the bed holder. The Department does not regulate the amount charged.

For more information on medicaid planning, elder law, estate planning, veterans’ benefits, special needs planning or special education advocacy, visit our website at www.littmankrooks.com. Have a question? Contact us at info@littmankrooks.com.

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