SECRETS OF AN ELDER LAW ATTORNEY
What a boring life we lead
Fort Wayne Estate Planning Council Presentation
May 19, 2016
AGED AND DISABLED WAIVER
Recipients of the Aged and Disabled Waiver live in a community setting. They are initially approved for level of care services through a notice of action from the Division of Aging. The notice of action contains a list of approved service hours which are generally for non-medical services, such as housekeeping, public feeding assistance, respite care, etc.
The waiver recipient often needs additional services. The care provider can submit a request for prior authorization to obtain additional medical care. The prior authorization request procedure is spelled out in Chapter 6 of the Indiana Health Coverage Programs Provider Manual.
TIP: You should read Chapter 6 and be aware of the Prior Authorization rules. These services include, but are not limited to:
- Durable medical equipment and home medical equipment
• Hospital bed
• Non-motorized wheelchair
• Home oxygen therapy
- Out-of-State health care
- Request for additional transportation services
- Home health nursing services
- Food supplements
The call comes in to the Area Agency on Aging. The family is desperately in need of a Medicaid Waiver for an aged (60 or over) or disabled family member. The call is routed to the Aged and Disabled Resource Center (ADRC) options counselor.
The options counselor does a telephone triage to see if the family member appears to meet the necessary level of care for waiver services. The counselor uses the eligibility screen to make an immediate determination of eligibility for services. A favorable immediate determination results in a face to face meeting to determine eligibility.
The counselor then starts the assessment process in the Indiana Insite System. Frequently the Medicaid category needs to be changed if the client is already receiving some services under the enhanced Medicare Savings Program. The change is to MA A (Aged) or MA D (disabled) from:
MA L (Qualified Medicare Beneficiary up to 150% FPL);
MA J (Special Low Income Medicare Beneficiary benefit 151%-170% FPL); or
MA I (Qualified Medicare Beneficiary 171%-185% FPL).
The counselor then mails the family information about eligibility for waiver services. For those who do not immediately appear to meet the necessary level of care, they receive a denial notice with their appeal rights. The folks that appear to meet the appropriate level of care receive the cover letter and a form showing they meet level of care for the waiver. The physician must state in writing it is safe and feasible for the patient to receive community supported in-home care.
The patient has met the initial level of care via the telephone assessment, the forms have been mailed to the patient for the Doctor to complete, and the patient is now considered “targeted” in the Indiana Insite System.
The Pre-Admission Screening process (“PAS”) is theoretically the same for waiver services and nursing home admission. The PAS System is seriously in need of updating in Indiana. The PAS manual was last updated in 2000 and is rarely used in the field. We expect the Indiana Agency of Aging will move to a more automated PAS system by July 1, 2016.
The Area Agency on Aging now assigns a case manager to the patient. Area 3 makes these assignments on the 10th and 30th of each month. The case manager then has 30 days to complete the paperwork and send the completed paperwork to the supervisor for review before it goes to the State for final approval. The case manager schedules the face-to-face meeting. These meetings usually take 1½ to 2 hours. The case manager documents level of care in the face-to-face meeting. The patient is given a list of the waiver services provided in the Area called a provider pick list.
If the face to face meeting goes well, the patient meets level of care. The case manager (there are 22 in Area 3) then completes the Plan of Care and the Cost Comparison Budget.
The State then approves the Cost Comparison Budget. You are now able to file an application for Medicaid for your client. You will want to do this as soon as possible, as your client will not start receiving services until the RID (Recipient ID) number is obtained.
TIP: Case managers check the Insite System every month to see if their clients have Medicaid elibility. You should immediately notify the case manager at the Area Agency on Aging when Medicaid is obtained so services will start as soon as possible.
TIP: When you represent single folks, consider an early application for the enhanced Medicare Savings Program so they will already be eligible for services when the CCB is approved by the State.
TIP: Do not let the case manager tell you the client must be approved for Medicaid before applying for waiver services.
The State then issues the Notice of Action form showing the number of hours of approved services for the at-home waiver recipient. These can be for respite care for the caregiver or for in-home services. The average approved hours are 40-60 hours per month for at-home waiver recipients.
The service provider can then request additional Medicaid hours of care under the prior approval system. Case managers are not directly involved in approving prior approval of services.
When a married person first enters a nursing home or hospital (or a combination thereof) for more than 30 consecutive days after September 30, 1989, a snapshot (resource assessment) is taken of their assets to determine Medicaid eligibility. When the Medicaid applicant for waiver services has a prior snapshot date, you then know what resource level the married couple has to be below so the applicant can be approved. Mom and Dad will almost always have a different snapshot date.
Example: Mom goes to the hospital May 1, 2015. She goes to the nursing home on May 5, 2015. She comes home June 6, 2015. May 1, 2015, is always her snapshot date.
On May 1, 2025, Mom and Dad own:
Home (exempt) $120,000.00
IRA (Dad) (exempt) 200,000.00
IRA (Mom) 20,000.00
Countable Resources $120,000.00
Spousal Share $ 60,000.00
Clients sometimes have prior snapshot dates from a previous fall, illness, or surgery. The resource assessment (RA) can be determined much easier in these situations. However, in many situations, clients will not have a prior snapshot date. The resource assessment becomes tricky at this point.
The snapshot date for waiver applicants without a prior institutional stay is either the date of application for Medicaid or the date the Cost Comparison Budget (CCB) is approved, whichever is later.
Example: CCB completed August 1, 2015. Medicaid application filed August 5, 2015. August 5th is now the snapshot date, so a financial plan can now be implemented to establish eligibility as of September 1st.
TIP: Know the waiver supervisor at your local Area Agency on Aging. Periodically let the supervisor know the clients you are applying for waivers via email. This allows the waiver supervisor to email the CCB approval to you. This helps your client get the needed services sooner.
LOOK BACK PERIOD
You must review all transfers of assets within 60 months of a Medicaid application. Medicaid permits gifts of $1,200 per year—not $14,000 per year.
You can do planning in the look back period!
Transfers between spouses are not penalized. Mom and Dad have countable resources of $120,000. Mom goes to the nursing home. Dad can keep everything.
POWER OF ATTORNEY
A power of attorney is most useful when it is:
- Immediately Effective
- Contains a Gifting Clause
- Digital Authority for Online Assets
Specific Clauses to include:
- Gift Transactions (including authority to make gifts on my behalf from time to time to any one or more of my children, either outright or in trust, without any annual or other limitation in value, for any purposes my Attorney-In-Fact considers to be appropriate.
- My Attorney-In-Fact shall NOT have any authority under this power of attorney:
- to make gifts, whether outright or in trust, to my Attorney-In-Fact, to the spouse, a child, or other descendant of my Attorney-In-Fact, to the spouse of a child or other descendant of my Attorney-In-Fact, or to any person my Attorney-In-Fact is obligated to support or customarily supports, except in furtherance of a plan adopted by me or recommended to me in writing by my professional advisor for the preservation or disposition of my estate, or in furtherance of a plan or pattern of gift-making established by me, whether adopted, recommended, or established before or after I sign this power of attorney;
Electronic Assets (SB 253 effective July 1, 2016):
- electronic records, reports, and statements (including authority to (i) gain access to and exercise control over my digital assets, (ii) access my user accounts with online service providers, (iii) access, retrieve, copy, or store electronic communications sent or received by me, and (iv) perform any acts in connection with the use of electronic records pertaining to my affairs);
SPECIAL NEEDS TRUSTS
The purposes of a Special Needs Trust is to keep assets and/or income from being considered “available” for means-tested benefits.
Common sources of funds to be placed in a Special Needs Trust are:
- Inheritance (generally spousal)
- Personal Injury or Workers Compensation Settlements
- Disabled child with special needs
The assets contained in a Special Needs Trust must be used for the sole benefit of the disabled beneficiary.
A Special Needs Trust may be two-tiered with contributions to an ARC Trust authorized. It may also include the authority to establish an ABLE Account.
Spouse’s Special Needs Trusts:
- Discretionary, Supplemental
- “Following my death, the trustee shall distribute to or for the benefit of my spouse as much of the net income and principal of the trust, even to the extent of exhausting principal, as the trustee, in the trustee’s sole discretion, from time to time deems advisable; provided, however, that it is my intention that amounts distributed to or for the benefit of my spouse under this Article be only for my spouse’s extra and supplemental needs in addition to and over and above the benefits my spouse may otherwise receive or be entitled to from any local, state, or federal government agency or from any private agency.”
A Spousal Special Needs Trust must be Testamentary.
Include Special Needs Trust provisions in all of your wills.
If any Share or portion thereof is otherwise distributable to a beneficiary who has a physical or mental condition which substantially impairs that beneficiary’s ability to manage his or her property or provide for his or her own care, as determined in good faith by my personal representative with the written concurrence of a medical doctor who has examined the beneficiary within the previous three (3) months, then that beneficiary’s gift under this Article shall be held in a trust named for him or her and administered under subsequent provisions of this will. My personal representative shall serve as the trustee of this trust or appoint any individual, bank, or trust company as the trustee of this trust. In general, the purpose of this trust is to provide financial aid that is supplemental to, rather than a replacement for, government benefits available to the beneficiary, without adversely affecting governmental benefits that would be available to the beneficiary if the trust did not exist. The trustee shall hold, administer, and distribute the trust property for the benefit of the beneficiary during the beneficiary’s lifetime, unless this trust is sooner terminated. In the administration of the trusts created hereunder, the trustee shall have all rights, powers, and duties granted by Indiana law, including the Indiana Trust Code, as in effect from time to time, exercisable in the discretion of the trustee.