Seeking long-term care? How your local Ombudsman can help…

    • OMBUDSMAN: What is the Program/Service   Via www.aging.ny.gov

      Educating, empowering and advocating for long-term care residents. The Ombudsman Program is an effective advocate and resource for older adults and persons with disabilities, who live in nursing homes, assisted living and other licensed adult care homes. Ombudsmen help residents understand and exercise their rights to good care in an environment that promotes and protects their dignity and quality of life.
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      The Ombudsman Program advocates for residents by investigating and resolving complaints made by or on behalf of residents; promoting the development of resident and family councils; and informing government agencies, providers and the general public about issues and concerns impacting residents of long-term care facilities.

      Mandated by the federal Older Americans Act, in New York the Ombudsman Program is administratively housed at the State Office for the Aging (NYSOFA), and provides advocacy services through a network of 36 local programs. Each local Ombudsman Program is lead by a designated ombudsman coordinator who recruits, trains and supervises a corps of volunteers, currently more than 1000 statewide. These certified volunteers provide a regular presence in nursing homes and adult care facilities are available to help residents with questions and concerns about their care and living conditions.

      Conversations with the ombudsman are confidential and residents or other persons can register a complaint anonymously. Ombudsmen handle a wide variety of complaints involving quality of care, residents’ rights, discharge, medications, lost or stolen items, dietary issues, and quality of life concerns. Ombudsmen can also provide information and consultation about how to choose a facility and how to pay for long-term care.

    • Who is Eligible?

      While the program serves all residents of licensed long-term care facilities regardless of age.

    • Is There a Cost?

      Ombudsman services are provided free of charge.

READ ABOUT PROTECTING YOUR ASSETS FOR YOUR FAMILY WHILE GETTING THE CARE YOU NEED

How to Manage Higher Health Insurance Costs in 2016

There are ways to mitigate the effects of cost increases.

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Via US NEWS & WORLD REPORT By Aug. 5, 2015

If you have health insurance, there’s a good chance you’ll pay more for it in 2016.

Health care and health insurance costs increase year to year, like most expenses. Since the implementation of the Affordable Care Act, growth in premiums has mostly slowed (as has the rise in health care costs overall), while your share of expenses – like deductibles – has increased. For several reasons, increases in both premiums and other out-of-pocket costs are expected in the coming year.

You can cope with these cost increases by understanding how they’ll happen and what you can do to mitigate their effects. How they affect you depends largely on where you get your insurance.

Employer-Based Health Insurance

About half of all Americans receive health insurance through an employer, less than in years past. Although having a job with health insurance is a perk, that doesn’t mean the benefit comes cheap.

Employer-based insurance premiums have grown relatively modestly over the past few years, according to Sabrina Corlette, senior research fellow and project director of Georgetown University’s Center on Health Insurance Reforms. This is due, in part, to slower growth in health care costs, but also because employers are shifting other costs to their workers, a practice known as “cost-sharing.”

For instance, the number of workers with a health insurance deductible grew from 55 percent in 2006 to 80 percent in 2014, and the average deductible more than doubled, from $584 for individual coverage to $1,217, according to the Kaiser Family Foundation. Further, more employers are offering only plans with high deductibles.

In 2016, if you receive your insurance through your job, you may see modest premium increases and are likely to see increased cost-sharing, like bigger deductibles.

Depending on the size of your employer, you will likely have a few plan options at open enrollment time, which is usually in the fall. Here are some tips for choosing the right health plan to help keep costs in check:

● Opt for a smaller provider network (HMO) or a high-deductible plan if you’ll feel the pinch in premiums. Both of these options could reduce your monthly costs. Remember, these plans have trade-offs. In an HMO, you have less freedom to go to the doctors of your choice. With a high-deductible health plan, you’ll cover more of your health care costs upfront until your insurance starts picking up the tab.

● Choose a higher premium plan like a PPO if the thought of that big deductible scares you. These plans may have higher monthly costs, but allow you greater freedom to visit the doctors you want without such high out-of-pocket expenses.

● Take advantage of health spending accounts no matter your plan choice. These accounts allow you to set aside pre-tax dollars for out-of-pocket medical expenses, and they’re usually taken directly from your paycheck. The two most common types are health savings accounts and flexible spending accounts. HSAs are available only to people with high-deductible plans, but have benefits over FSAs because you are able to carry your unused balance from year to year. With FSAs, if you don’t use the money you’ve allocated to the account, you’re likely to lose it at the end of the year.

“Marketplace”-Based Health Insurance

During the second open enrollment period of the ACA, an estimated 11.7 million people had selected or were automatically re-enrolled in health insurance plans on the federal and state marketplaces, according to the Department of Health and Human Services.

Recent media coverage of planned 2016 premium hikes refers to plans purchased by individuals on these health care exchanges. But these reports don’t tell the whole story.

“The data that’s out there about 2016 premiums is a little deceiving,” Corlette says. “And that’s because, in most states, the only rates that have to be posted right now are those that are proposed to be over 10 percent increases.” Insurance companies projecting more modest increases, therefore, don’t have to share that publicly, creating a skewed sample.

But, Corlette says, that doesn’t mean there won’t be premium increases. They’re driven largely by rising prescription drug costs, insurers having a clearer picture of their policyholders’ health care needs and the end of temporary “risk mitigation” programs that gave cash incentives to insurers for approving everyone.

In 2016, if you buy your insurance on state or federal health insurance marketplaces, you’re likely to see both increased premiums and cost-sharing. But unlike employer-based coverage, increased premiums on these plans are often offset by subsidies.

The solution, as with employer coverage, lies in shopping carefully.

● Reapply for the premium tax credit or health care subsidies. The Department of Health and Human Services estimates 87 percent of people purchasing marketplace plans receive this financial assistance to help lower premium costs. Updating your income information each year will ensure you’re getting the maximum allowable benefit.

● Be flexible and willing to part with your current plan. As costs change, the government may label another marketplace plan the “benchmark,” or the plan to which subsidy amounts are tied. If the price of your current plan goes up and another goes down, that lower-priced option may be deemed the benchmark. By switching plans, you’ll likely avoid cost increases altogether.

“The subsidy is almost like a gift card,” Corlette says. “So if you take it and stay in your same plan, even though that plan has gone up, yes, you’ll be paying more. But if you take it and go shop for a lower-priced plan, you should be fine.”

● Apply for Medicaid or CHIP coverage if you have children. If you make too much to qualify for Medicaid, your children could still be eligible for it or for The Children’s Health Insurance Program. Both are designed to provide health insurance to children at no or low cost. Eligibility varies by state, income and family size. In some states, children in a family of four could be eligible even if the household adjusted gross monthly income is as much as $6,000 or $7,000.

Stay Calm

When you’re reading about potentially dramatic health care cost increases, 2016 doesn’t seem so far off. Take this time to understand what is and isn’t working for you on your current plan and what your other options are. This way, when open enrollment comes around, you’re prepared to make savvy decisions about your health care.

How You Can Use Your Social Security Benefits as an Interest-Free Loan

One little-known Social Security retirement benefits rule is the so-called “do-over rule.” Under this rule, an individual 62 years or older can start collecting benefits but stop the benefits within 12 months of the start, repay the benefits collected, and then still be eligible for their higher benefit amount when they collect at full retirement age or older.
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What’s the advantage if the benefits must all be immediately repaid? The strategy can work as a short-term interest-free loan. It makes sense, for example, in cases where an individual has a need for income in the immediate short term, due to an emergency such as a sudden loss of employment, but anticipates income within the year that would allow for full repayment, i.e., finding a new job or collecting a pension. Many individuals in their early 60s have most of their assets tied up in retirement and investment accounts, and withdrawals from these accounts would trigger hefty penalties. After “emergency” liquid funds run out, the do-over rule offers a short-term solution. In addition, by drawing on a Social Security “loan” instead of investments, you allow your investments to continue growing.

What if you are unable to pay back the benefits after the 12 months are up? You may still be able to suspend your benefits and increase your ultimate pay-out amount. For example, if you start collecting at 62 but no longer need the income at 66, you could suspend benefits until 70. Then, between the ages of 66 and 70, you would earn delayed retirement credits which would increase the ultimate benefit amount when you collect at age 70.

(Note that up until December 2010, it was possible for you to collect benefits and repay at any time. The law has since changed so that you are limited to a 12-month pay back period. You are also only allowed one “do-over.”)

For more information on how to collect, suspend and pay back benefits, contact or visit your local Social Security district office. You can click here to find your local office.

Appeals Court Upholds Class Certification of Nursing Home Residents Seeking Community-Based Alternatives

A U.S. Court of Appeals upholds a district court ruling that granted class certification to a group of disabled nursing home residents who complained of a lack of Medicaid-funded community-based alternatives.  In re District of Columbia, (D.C. Cir., No. 14-8001, June 26, 2015).
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The plaintiffs, a group of disabled nursing home residents receiving Medicaid-funded long term care, sued the District of Columbia for allegedly violating its obligation, pursuant to the Americans with Disabilities Act, to provide services to the disabled in the most appropriate, integrated setting. The plaintiffs filed a motion seeking class certification, asserting that they were all similarly situated nursing home residents who wanted to live in the community but were forced to remain institutionalized against their will.

The U.S. District Court for the District of Columbia granted the motion for class certification, finding that alleged systemic deficiencies, such as the District’s failure to offer sufficient discharge planning or to provide residents with meaningful choices of community-based alternatives to nursing home care, were sufficient bases upon which to certify the class.

The District filed a petition for permission to file an interlocutory appeal of the district court’s ruling certifying the class.  The District argued that the lower court committed manifest error by failing to identify policies or practices that were common to all members of the class and that were amenable to class-wide resolution.

The U.S. Court of Appeals for the District of Columbia Circuit disagrees and upholds the class certification.  The court concludes that it was not manifest error for the lower court to find the allegations of systemic deficiencies in the program sufficient to establish a class of plaintiffs.

For the full text of this decision, click here.

Careful…Gifting To Family Can Affect Medicaid Eligibility

By Matthew S. Raphan, Esq.  Attorney at The Law Offices of Brian A. Raphan, PC

View image | gettyimages.com
View image | gettyimages.com

Every so often a client says to me, “I’ve been gifting money to my children and grandchildren so I can apply for Medicaid.” While gifting may offer benefits to you and your family, if you think you may someday apply for Medicaid benefits, you should be aware that giving away money or property can interfere with your eligibility.

Under federal law, if you transfer certain assets within five years prior to applying, you may be ineligible for Medicaid benefits for a period of time. This is called a transfer penalty, and the length of the penalty depends on the amount of money transferred. (This waiting period can also be costly as you may pay for your care out of your own pocket.) Even small transfers can affect eligibility. Although federal law currently allows individuals to gift up to $14,000 a year without having to pay a gift tax, Medicaid still treats that gift as a transfer.

Any transfer that you make, however nominal, may be scrutinized. For example, Medicaid does not have an exception for gifts to charities. If you make a charitable donation, it could affect your Medicaid eligibility down the road. Similarly, gifts for holidays, weddings, birthdays, and graduations can all trigger a transfer penalty. If you buy something for a friend or relative, this could also result in a transfer penalty.

Some people have the notion that they can also go on a spending spree for themselves or family. Not so fast. Spending a large sum of cash at once or over time may prompt the state to request documentation showing how the money was spent. If you don’t have receipts showing that you received fair market value in return for a transferred asset, you could be subject to a transfer penalty.

While most transfers are penalized, certain transfers are exempt from this penalty. For example, even after entering a nursing home, you may transfer any asset to the following individuals without having to wait out a period of Medicaid ineligibility:

  • your spouse;
  • your child who is blind or permanently disabled;
  • a trust for the sole benefit of anyone under age 65 who is permanently disabled.

In addition, you may transfer your home to the following individuals (as well as to those listed above):

  • your child who is under age 21;
  • your child who has lived in your home for at least two years prior to your moving to a nursing home and who provided you with care that allowed you to stay at home during that time;
  • your sibling who already has an equity interest in the home and who lived there for at least one year before you moved to a nursing home.

Before transferring assets or property, check with us or your elder law attorney to ensure that it won’t affect your Medicaid eligibility.

For more information on Medicaid’s transfer rules, click here.

Related Articles:

Medicaid planning mistakes
TOP 8 MEDICAID PLANNING MISTAKES

If you have a question you can send us a message here.

Careful…Gifting To Family Can Affect Medicaid Eligibility

By Matthew S. Raphan, Esq.  Attorney at The Law Offices of Brian A. Raphan, PC

View image | gettyimages.com
View image | gettyimages.com

Every so often a client says to me, “I’ve been gifting money to my children and grandchildren so I can apply for Medicaid.” While gifting may offer benefits to you and your family, if you think you may someday apply for Medicaid benefits, you should be aware that giving away money or property can interfere with your eligibility.

Under federal law, if you transfer certain assets within five years prior to applying, you may be ineligible for Medicaid benefits for a period of time. This is called a transfer penalty, and the length of the penalty depends on the amount of money transferred. (This waiting period can also be costly as you may pay for your care out of your own pocket.) Even small transfers can affect eligibility. Although federal law currently allows individuals to gift up to $14,000 a year without having to pay a gift tax, Medicaid still treats that gift as a transfer.

Any transfer that you make, however nominal, may be scrutinized. For example, Medicaid does not have an exception for gifts to charities. If you make a charitable donation, it could affect your Medicaid eligibility down the road. Similarly, gifts for holidays, weddings, birthdays, and graduations can all trigger a transfer penalty. If you buy something for a friend or relative, this could also result in a transfer penalty.

Some people have the notion that they can also go on a spending spree for themselves or family. Not so fast. Spending a large sum of cash at once or over time may prompt the state to request documentation showing how the money was spent. If you don’t have receipts showing that you received fair market value in return for a transferred asset, you could be subject to a transfer penalty.

While most transfers are penalized, certain transfers are exempt from this penalty. For example, even after entering a nursing home, you may transfer any asset to the following individuals without having to wait out a period of Medicaid ineligibility:

  • your spouse;
  • your child who is blind or permanently disabled;
  • a trust for the sole benefit of anyone under age 65 who is permanently disabled.

In addition, you may transfer your home to the following individuals (as well as to those listed above):

  • your child who is under age 21;
  • your child who has lived in your home for at least two years prior to your moving to a nursing home and who provided you with care that allowed you to stay at home during that time;
  • your sibling who already has an equity interest in the home and who lived there for at least one year before you moved to a nursing home.

Before transferring assets or property, check with us or your elder law attorney to ensure that it won’t affect your Medicaid eligibility.

For more information on Medicaid’s transfer rules, click here.

Related Articles:

Medicaid planning mistakes
TOP 8 MEDICAID PLANNING MISTAKES

If you have a question you can send us a message here.

Medicaid Recipient Cannot Bring Claim to Require State to Deduct Guardianship Fees

NEW YORK: The U.S. Court of Appeals for the Second Circuit holds that a Medicaid recipient who is under guardianship cannot bring a § 1983 claim to require the state to deduct guardianship fees from her available income. Backer v. Shah (U.S. Ct. App., 2nd Cir., No. 14-1367-cv, June 3, 2015).
Brian Raphan, P.C.
New York resident Mindy Backer lived in a nursing home and received Medicaid benefits. Under state law, she had to contribute all of her monthly income, except for a $50 personal needs allowance, to the nursing home. The court appointed Ms. Backer’s sister as her guardian. The guardianship order stated that Ms. Backer’s income would be considered unavailable for the purposes of calculating her monthly available income. However, in a separate proceeding, the state determined that Ms. Backer could not deduct guardianship fees from her available income.

Ms. Backer sued under 42 U.S.C. § 1983, alleging that the state violated 42 U.S.C. § 1396a(a)(19), which requires the state to ensure eligibility is determined in the best interest of the recipient, and 42 U.S.C. § 1396a(q)(1)(A), which requires the state to deduct a personal needs allowance. The district court dismissed the claim for lack of standing because Ms. Backer’s injury was solely attributable to her own action in paying her guardian instead of the nursing home, and Ms. Backer appealed.

The U.S. Court of Appeals, Second Circuit, affirms, holding that while Ms. Backer had standing to bring the claim, she did not allege a violation of a federal right that could be enforced through § 1983. The court rules that the provision requiring the state to ensure eligibility is determined in the best interest of the recipient could not be enforced through § 1983 because it does not provide a “workable standard for judicial decision making.” In addition, according to the court, the personal needs allowance section does not require the state to allow the deduction of guardianship fees.

For the full text of this decision, go to: http://cases.justia.com/federal/appellate-courts/ca2/14-1367/14-1367-2015-06-03.pdf?ts=1433341806

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To see the Top 8 Medicaid Planning Mistakes click here.

Some Potential Problems With SSA’s New Trust Guide

Social Security News

As previously reported, the Social Security Administration (SSA) recently instituted a nationally uniform procedure for review of special needs trusts for Supplemental Security Income (SSI) eligibility, routing all applications that feature trusts through Regional Trust Reviewer Teams (RTRTs) staffed with specialists who will review the trusts for compliance with SSI regulations.

The SSA has also released its Trust Training Fact Guide, which will be used by the RTRTs and field offices when they evaluate special needs trusts.  In an article in the July/August 2014 issue of The ElderLaw Report, New Jersey attorney Thomas D. Begley, Jr., and Massachusetts attorney Neal A. Winston, both CELAs, discuss the 31-page guide in detail and caution that while it is a significant step forward in trust review consistency, it contains “a few notable omissions or terminology that might cause review problems.”  Following is the authors’ discussion of the problematic areas:

• Structured Settlements. The guide states that additions/augmentations to a trust at/after age 65 would violate the rule that requires assets to be transferred to the trust prior to the individual attaining age 65. It does not mention that the POMS specifically authorizes such payments after age 65, so long as the structure was in place prior to age 65. [POMS SI 01120.203.B.1.c].

• First-/Third-Party Trust Distinction. Throughout the guide, there are numerous references to first-party trust terms or lack of terms that would make the trust defective and thus countable. These references do not distinguish between the substantial differences in requirements for first-party and third-party trusts.

• Court-Established Trusts/Petitions. This issue is more a reflection of an absurd SSA policy that is reflected accurately as agency policy in the guide, rather than an error or omission in the guide itself. This section, F.1.E.3, is titled “Who can establish the trust?” The guide states that creation of the trust may be required by a court order. This is consistent with the POMS. It would appear from the POMS that the court should simply order the trust to be created based upon a petition from an interested party. The potential pitfall described by the guide highlights is who may or may not petition the court to create a trust for the beneficiary. It states that if an “appointed representative” petitions the court to create a trust for the beneficiary, the trust would be improperly created and, thus, countable. Since the representative would be considered as acting as an agent of the beneficiary, the beneficiary would have improperly established the trust himself.

In order for a court to properly create a trust according to the guide, the court should order creation of a trust totally on its own motion and without request or prompting by any party related to the beneficiary. If so, who else could petition the court for approval? The plaintiff’s personal injury attorney or trustee would be considered an “appointed representative.” Would a guardian ad litem meet the test under the guardian creation authority? How about the attorney for the defendant, or is there any other person? If an unrelated homeless person was offered $100 to petition the court, would that make the homeless person an “appointed representative” and render the trust invalid? The authors have requested clarification from the SSA and are awaiting a response.

Until this issue is resolved, it might be prudent to try to have self-settled special needs trusts established by a parent, grandparent, or guardian whenever possible.

• Medicaid Payback/Administrative Fees and Costs. Another area of omission involves Medicaid reimbursement. The guide states that “the only items that may be paid prior to the Medicaid repayment on the death of the beneficiary of the trust are taxes due from the trust at the time of death and court filing fees associated with the trust. The POMS, [POMS SI 01120.203.B.1.h. and 203B.3.a], specifically states that upon the death of the trust beneficiary, the trust may pay prior to Medicaid reimbursement taxes due from the trust to the state or federal government because of the death of the beneficiary and reasonable fees for administration of the trust estate such as an accounting of the trust to a court, completion and filing of documents, or other required actions associated with the termination and wrapping up of the trust.

While noting that the guide, in coordination with training, “is a marked improvement for program consistency for trust review,” Begley and Winston caution advocates that “the guide should be considered as a summarized desk reference and training manual and not a definitive statement of SSA policy if inconsistent with the POMS.”

Regards,

Brian A. Raphan, Esq.

The Law Offices of Brian A. Raphan, P.C.

www.RaphanLaw.com

5 Tips for Arranging and Paying for a Home Health Aide:

-By Emily Garnett, Associate Attorney at Brian A. Raphan, P.C.

Finding oneself or a family member in need of home care can be a tough pill to swallow. It is often difficult to accept that you or a loved one is no longer able to safely do many of the activities of daily living that you once could. At that point, it may be time to bring in a home health aide for assistance with a wide variety of activities of daily living.

1. How to Arrange Help and Payment: Many people choose to privately pay for home health aides. If you choose to go this route, you can utilize a long-term home health care program (LTHHCP). These are agencies accredited by the state that provide home health aides. They manage the staffing and payroll. However, you can also choose to select aides that are privately paid, and work outside of an LTHHCP agency. For these aides, you would have to manage staffing and payroll issues yourself, or utilize the expertise of an elder law attorney or geriatric care manager to manage these details.

Medicaid Planning

2. Using Medicaid to Pay: If you are unable to privately pay for home care, you have the option of applying for Medicaid to obtain coverage for long-term home care. It is advised that you work with an elder law attorney or other professional to facilitate this process, as it can be complicated, and the regulations are frequently changing. In order to qualify for Medicaid, the applicant must meet certain requirements for income and assets. The current Medicaid asset limit is $14,550.00, and the monthly income limit is $809.00. Unlike nursing home Medicaid, there is no look-back period for community Medicaid, meaning that Medicaid is not going to investigate past money transfers like they would for an application for nursing home coverage. There are several ways to address the income and asset limits required for Medicaid acceptance, the most common being the use of pooled trusts to shelter those funds. Pooled trusts are frequently used to meet the Medicaid spend-down, which is the requirement that an applicant reduce his or her available income so that it remains under the Medicaid limit.

3. Shelter your Income: Once an individual applies for Medicaid coverage, he or she can join a third party pooled trust to shelter the excess income and meet the spend-down. These trusts allow the individual to use the funds sheltered in the trust for personal needs outside of the Medicaid coverage, including expenses like rent, utilities, and phone bills. If this arrangement is not made, the applicant runs the risk of rejection by Medicaid or having to privately pay for some part of his or her home care each month.

4. Enrollment for Managed Long Term Care: Once you have applied for and been approved for Medicaid, you will work with your elder law attorney or specialist to enroll in a managed long-term care program (MLTC), which will provide home care services. The first step in this process is assessment by a new program, the Conflict-Free Eligibility and Enrollment Center (CFEEC), sometimes also referred to as “Maximus”. This assessment takes about two hours and provides a determination to Medicaid that the consumer is eligible for home care services. At that point, the consumer selects a managed long term care plan to enroll in. The MLTC plan then schedules a second assessment, also lasting about two hours, in which the specific care needs of the consumer are assessed. At the conclusion of this assessment, the nurse performing the assessment will submit the information to Medicaid, who will ultimately determine the number of hours of home care needed each day by the consumer. This process is very time-sensitive, so work closely with your Medicaid attorney assisting with the application process, to avoid costly and unnecessary delays.

5. Keeping Your Ongoing Benefits: Once the application process is complete, your home care will likely start on or around the first of the following month. At that point, your obligations as a consumer are to maintain the income and asset limits, including utilization of a pooled trust if needed. You will be required to annually re-certify with Medicaid that you have maintained these levels. Should you have questions at that point, please don’t hesitate to reach out to your Medicaid planning attorney, rather than risk losing your Medicaid benefits. It is worth noting, however, that occasionally delays arise in various points of the application process through no fault of the attorney or applicant. Should you find yourself in such a position, understand that these issues do arise, and make sure to cooperate with your attorney or specialist’s advocacy efforts towards resolution.

Emily Garnett, Esq.

The Law Offices of Brian A. Raphan, P.C. 7 Penn Plaza, Suite 810 New York, NY 10001 T: (212) 268-8200

“Helping Senior New Yorkers for over 25 Years”