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”

New Federal Regulations May Increase Pay for Home Care Workers, But Could Harm Seniors and People with Disabilities…

A federal regulation scheduled to go into effect on January 1, 2015, could force employers to pay previously exempt caregivers the federal minimum wage and time-and-a-half for overtime.  While this may seem like a good deal for the caregivers, it could result in cutbacks to services for seniors and people with disabilities if states limit caregiver hours in response to the new regulations.

medicaid planning, appeal

Congress initially passed the Fair Labor Standards Act (FLSA) in 1938 to give most workers a guaranteed minimum wage and overtime protection.  The original FLSA did not apply to many domestic workers hired directly by households, so in 1974 Congress amended the FLSA to cover many people who work in private households.  However, the 1974 amendment did not apply to “companionship” workers who assist elderly patients or people with disabilities, and it also stated that live-in domestic workers were not entitled to overtime pay.

In 2013, the Department of Labor issued a final regulation altering these rules for the first time since 1974.  The new regulation, which goes into effect on January 1st, narrows the definition of “companionship” services and requires third-party employers like home health care agencies to meet all minimum wage and overtime laws for all employees.

Under the new rules, an employee qualifies as a “companionship” worker only if he spends less than 20 percent of his work time assisting a senior or person with disabilities with activities of daily living or instrumental activities of daily living.  In addition, if the worker provides any medically necessary services, then he is not engaged in “companionship” work.  In all cases, if the employee is not considered a companion, then he must be paid the minimum age and must receive overtime pay.  These rules apply only to workers employed by the senior, person with disabilities or her household.  If the worker is employed by a third party, or in many cases if the worker is employed by both the person with disabilities and a third party (like a state agency), then he will always be subject to minimum wage and overtime rules, even if he is a live-in employee who would typically not be subject to overtime rules.

Although the new regulations could mean more money for caregivers who may not currently receive minimum wage or overtime protection, there could also be some negative consequences for consumers and caregivers.  Since many state agencies are now going to be considered third-party employers, they may implement their own regulations limiting the number of hours that caregivers can work in order to avoid being out of compliance with these new federal rules.  This could lead to reduced services for people who need them and fewer hours for caregivers.

According to an advocacy fact sheet from the National Senior Citizens Law Center, only California has addressed these concerns in its 2014-2015 budget, which leaves most seniors and people with disabilities in limbo as the January 1st implementation deadline approaches.

For more on this complicated problem, you can view an assortment of materials on the Department of Labor’s website here and download the National Resource Center for Participant-Directed Services’ toolkit here.

Regards, Brian