One of the core concepts of elder law is that of advocacy for an elder who needs assistance. We have found that is especially true in the medical arena. Too often an elder does not get sufficient treatment to recover from a condition or to maintain independent living.
Advocacy is important, but how does one accomplish GOOD advocacy? In addition to the value of being persistent the advocate must be INFORMED. This can be especially difficult in the healthcare area because we rely upon doctors to make medical decisions, including the decision that treatment will no longer be beneficial.
We have written before how the healthcare system makes mistakes by not reviewing all relevant information. (See blog post “How to avoid the two most common serious medical mistakes.”) This is a situation where the patient advocate can be greatly beneficial in making sure the doctor has all needed information about the patient. For example, if the advocate provides a complete list of medications, supplements and botanicals that the patient takes, the doctor can review the list for conflicts with prescriptions.
But, what about Medicare? What about when a provider, say a home health agency, says Medicare will no longer pay for service? Is that the right decision? Is this a case of cost savings at the expense of patient good health? We have heard reports that some Detroit area hospitals will stop referring patients for out patient care to an agency that makes sure the patient receives the best complete treatment.
What does the patient advocate to do when faced with a denial of Medicare coverage? The answer is be informed about Medicare benefits and the appeal process. Fortunately there is consumer help easily available.
The Center for Medicare Advocacy has an incredible store of information and how-to advice. They have consumer self help materials including Comprehensive Tookits, checklists for appeals and up to date information on issues in Medicare. Here is a link that every patient advocate should have bookmarked: https://www.medicareadvocacy.org/take-action/self-help-packets-for-medicare-appeals/
Here’s to Your Health!
Jim
On March 6, 2024 Representative Jan Schakowsky reintroduced the “Stop Unfair Medicaid Recoveries Act.” That means if someone in your family who is age 55 and over and receives Medicaid long term care services, when they die their “estate” must pay back Medicaid every dollar. As some folks say “the government gets your home.”
It is a bill in Congress introduced in the House of Representatives by Representative Jan Schakowsky. She is from the Chicago area of Illinois. If passed and became law it would apply throughout the entire country. Its number is House bill 7573.
The Stop Unfair Medicaid Recoveries Act would end the practice of requiring the recipients who received Medicaid long term care services and supports when they were age 55 and over.
The current law requires payback for nursing facility services, home and community-based services, and related hospital and prescription drug services, or at the option of the State, any items or services under the State plan. See 42 USC 1396p(b)(1)(B).
In Michigan the payback process occurs through probate of the recipient’s “estate.” That means if you have anything that goes through probate, which is the legal process by which ownership is transferred to the new owners. The property that makes up the “probate estate” is subject to being sold and the money used to payback Medicaid. What goes through probate? Any “interest in property” solely owned by the recipient must go through probate. Jointly owned property does not go through probate. Example: Mary Smith is a widow, her husband predeceased her. They jointly owned their home, but now she is the sole owner. The house will need to go to probate to transfer ownership to the new owners. Without a Will providing otherwise her children will be the new owners. But, before they can take ownership the Medicaid bill must be paid back. Since the Medicaid bills are often in the tens and hundreds of thousands of dollars, that means the house is sold and money given to Medicaid – the government.
Some states have expanded estate recovery which means the state will claim against any property the recipient had an ownership interest at death. For example, that includes property jointly held with anybody (with the exception of spouses and dependent children). The most common target is the home and a car. Again, Michigan does not have this expanded Estate Recovery.
Do note that if the recipient had no property, then there is no estate recovery. An example would be a poor senior who lived in a low-income subsidized apartment and whose only possessions were the contents of the apartment.
The Michigan Medicaid programs included are: hospital; nursing home; Medicaid Waiver also known as HCBS services and MiChoice Waiver; PACE; and in-home help services including Home Help and Home Health. While a recipient is in these plans ALL payments Medicaid makes for hospital, ambulance, prescriptions, etc. are subject to payback and Medicaid Estate Recovery.
Some states have managed care Medicaid. In those states the recipient is subject to the “capitated rate” for payback. A case in California was reported where a fellow joined a Medicaid program, but for years did not need any services. When he died his estate was presented with a bill over $200,000.
Recipients in programs that help pay for Medicare, called QMBY & SLMBY, are NOT included in Medicaid Estate Recovery in any state.
Estate recovery will not apply if a recipient is so poor only have only personal possessions. This would be the case of a low-income senior who lives in an apartment and only owns possessions in the apartment. There is nothing for the state to collect from.
The government will Not demand relatives, including children make payment.
Almost nobody knows that a caregiver daughter or son who lives in the home and has kept a parent out of a nursing home for at least two years prior to the application for Medicaid, may be given the house. There will be no Medicaid Estate Recovery and Medicaid will not penalize the transfer. See an elder law attorney to learn your rights.
There are two mistaken assumptions in the question. The first correction is that Taxpayers pay the bill no matter what. If recipients have an “estate” that means they paid taxes during their life and while receiving benefits. They had to work to make money to buy their homes. If recipients are in their 70’s and they started working at age 18, then they have been Taxpayers for more than a half century. Finally, taxes are paid on the house until it is sold.
The second mistaken assumption is that money is saved for inheritance. If a recipient has a spouse at home, he or she is still facing expensive aging either in home, in a senior apartment or in an assisted living facility. The large majority of residents in “independent senior living” are folks over age 75 who cannot take care of a home. Rent is expensive.
In the case where the recipient is a widow or widower the fact is nursing homes can be a dangerous place both day and night for the recipient who has no family looking out for him or her. A family member who is the protective patient advocate must be available 24 hours around the clock. If the Medicaid recipient is living at home, Medicaid only pays for basic medical assistance. The recipient still needs additional daily support. This may be provided by private home care agencies at a charge of $30 per hour or more. Or, this valuable assistance may be provided by a family member without any lifetime compensation. Saving money for family is necessary for essential needs of the recipient.
Medicaid estate recovery is in effect an “estate tax.” Millionaires have a $13.2 Million dollar exemption from estate tax in 2024. Medicaid families have $0 exemption.
This article cannot be relied upon for anybody’s particular situation. If you have questions Get Legal Advice.
If you are a low-income person and have a question whether Medicaid Estate Recovery applies to you, GET LEGAL ADVICE. You can get free legal advice through a “legal aid” or legal services organization” for low-income folks.
Need a referral? Give us a call, (248) 356-3500, and we’ll refer you to a respected, ethical Elder Law Attorney who isn’t “in it for the money.”
March 17, 2024 by Jim Schuster
What to do:
If you admitted a family member to a nursing home you agreed to mandatory arbitration of all disputes. You cannot go to court. But, you have 30 days to rescind your agreement. Do it. Consumer advocates recommend not agreeing to arbitration before a dispute arises. After a dispute occurs you may agree to arbitration after consulting with your attorney.
The reasons for and against arbitration are complex, but here is a simple rule for the patient advocate. Do not agree to “pre-dispute” arbitration. If you signed such an agreement – often a single paragraph buried in pages of an admission agreement, you have 30 days to inform the nursing home you do not agree to arbitration. Do it in writing.
The admission packet: If you are admitting a family member to a nursing home you will be presented with a pile of papers to sign. This process will happen when your loved one is assigned a bed upon arrival from the hospital. This is a very hectic time. When presented with the pile of papers say “I would like the chance to read them. Can I take them to the room and read them there?” (Note – Covid protocols prohibited family members in the patient area. If such rules are still in effect then ask for the chance to read the papers in the lobby.) Cross out the paragraph of arbitration and initialing the change. Remember you have the right to not agree. If the admission person says cross outs or changes are not allowed, then when you sign include the statement “I do not agree to arbitration.”
What if it is more than 30 days since signing? You can ask and see if you can review the admission packet and try to make changes then. It is likely your only option to avoid arbitration is to move to another nursing home. See comment in Conclusion below.
Why?
There are many, many articles about arbitration. Nolo.com has a good explanation of the process. Public Citizen, Citizen .org, has many articles explaining the negatives of consumer arbitration.
Not neutral: In short, arbitration favors the company over the consumer. The arbitrator acts as the judge and jury. Arbitrators are always people familiar with the industry and have a reputation for favoring the business over the consumer. In court the consumer has a much better chance.
Expensive: Unlike television ads where lawyers say you pay nothing unless you win, in arbitration, win or lose, each side pays its costs and the joint cost of the arbitrator. Those can easily be in the thousands of dollars.
Incomplete Facts: When something bad happens to your family member in the nursing home, you must prove that the nursing home was and is at fault. That takes witnesses and documents such as nurse or aide logs. The nursing home has possession of these. In court lawyers have found records were changed after the reported injury. Witnesses may not testify for fear of being fired and being given bad references to new employers.
Conclusion
Do not agree to pre-dispute arbitration. You can always agree to arbitration after a dispute arises and after you consulted with your attorney.
What if your family member was admitted months ago? Your only solution may be to move to another nursing home and not agree in the new packet of papers to sign. And remember, if your patient goes to the hospital you can always inform the discharge department you want placement in another nursing home, in which finding a better nursing home is another story itself. We have other blog posts on that subject!
All the best,
Jim
Lesson: You need help, but your helper cannot help because s/he did not have the right “papers.” You were not ready for an emergency medical situation.
One thing we learned from the pandemic is that you can get seriously ill and you will need help. We’re not talking about dying Many, many people got so sick they could not do anything but work on getting better. What treatment does the doctor recommend? “What about something I heard?” “Can’t I get any help in home?” These are just the types of questions that came up and for most people there was no help for them to get real answers. When they were sick they needed help!
One of the hallmarks of the corona virus experience is that we did not know what treatments worked best. There was information available from everywhere. If we step back from the national “political” debate about the covid virus, and look more broadly at many conditions of aging, we can see this is not a unique experience. Consider chronic back pain. Many people have surgery on their spine while others report similar complaints but resolve them through therapy and exercise. What about swollen ankles and on and on. Many medical conditions have treatments we don’t know about. It seems that our medical system is pill and hospital centered. “If a pill won’t fix you, go to the hospital” seems to be the rule. But for many chronic conditions there is an alternative treatment and here we can run into the problem that the insurance company will not authorize the treatment. Here we go with appeals!!
The takeaway is that when you are suddenly very ill you or you have a condition that pills have not solved, you need a pre-authorized healthcare agent. As they used to say “your papers must be in order.”
Not a Living Will: We’re not talking about a “living will” or a Designation of Patient Advocate. Those refer to end of life decision making, like when to “pull the plug.” We’re not talking about dying. We’re talking about getting better the best way possible! And sooner the better!
Why do you need a legal form? A number of reasons. Perhaps the first is healthcare is a system. It is no longer “you and your doctor.” It’s you and “the physicians in your network” Your healthcare insurance program, public or private, is a huge entity. It is either a part of national government or a national corporation with headquarters who knows where. But that’s not the only reason you need legal form.
Healthcare “science” is really complex. It’s more than the dozens of pills we see advertisements for. It is a variety of medical treatments and not all doctors offer all treatments. When you want to know what is the best for you it calls for “researching:” find the options your insurance covers.
Michigan Mental Health Code Has Separate Requirements
Don’t forget “mental health.” That is covered under separate laws that not only cover psychiatrists, but also psychologists and medications that affect mood. Mood medications, such as pills for anxiety or depression, are common treatments covered under the Michigan Mental Health Code. Your agent may be denied access to information without specific authorization.
Healthcare is legally complex. Everybody has heard of “HIPAA.” That refers only to authority to talk to the doctor and receive specific information. That may not be enough for some corporate providers. You may need specific authorization to see medical records under the Michigan Medical Records Act.
So your “agent” can see records and discuss options with your doctor. Can they make decisions on your behalf? No, you must give them authority to go further.
What Can Your Authorized Agent Do?
Your agents must have authority to make decisions. An example: your doctor says you have two options: surgery or physical therapy. You lean toward the therapy but have questions about the chances of success and the recovery time with the surgery option. You discuss it with your daughter and decide that you would like to try therapy first depending on the answers the doctor gives. With the above authority your agent can receive information but cannot relay your decisions. With a full healthcare power your agent could get the answer to your questions and then say “Doctor, we’re going to try therapy first.” The referral process would begin immediately and not have to wait until you can speak with the doctor.
Let’s go further with the example. You are making progress with therapy but then the agency says they have reached the limit of the authorization. Unfortunately most people nowadays get no further help. But, with your agent helping you can “fight” for more in-home treatment. And, you will get it, if you get your “ducks in a row.” For example: the therapy record must show benefit; your doctor must recommend; etc. etc.
Finally, you must give legal authority to each person who will help you during emergency. Family relation is NOT sufficient. Without specific authority your spouse has no capacity to help. Your children have no authority to help. You must expressly authorize each of them.
Answer: A Complete Healthcare Power of Attorney
All of the above is what a complete healthcare power of attorney accomplishes. It names your agents and states what authority you gave them. They can do anything you need them to do.
In short? Get a comprehensive, immediately effective, healthcare power of attorney for your “team” so their ready to spring into action right now!
(Note “we” in this article refers to Elder Law attorneys. Want a good one? Call us at (248) 356-3500 for a referral.)
Can I re-phrase the question to : What is the value of having a lawyer do my Medicaid application? The reason why I say that, is the lawyer’s fee must have some relation to the results. If the application were a matter of merely taking 5 minutes to write basic information on a form, then maybe $50 would be too much. But there is much more to the Medicaid application process. Much, much more.
Consider the situation: Let’s say Dad is in the nursing home. The bill is over $10,000 a month. Medicaid will pay that bill as soon as Dad has “spent down” enough money to be eligible. That is till he only has $2,000 left attributable to him (by Medicaid standards). Mom needs money to live on. Can we save money for her? Without a lawyer, you will rely on the nursing home folks – they should know, shouldn’t they? They will tell you Dad needs to “spend down” until he is financially eligible for Medicaid. They say he can buy a funeral, but mostly the money must be spent at the nursing home. (No surprise) How much must he spend down?
First off: Medicaid counts assets of husband and wife. Medicaid allows an applicant to have $2,000 in cash assets. When the applicant is married the “community spouse” is allowed half of the cash assets up to a maximum of $137,400. (In 2022.) So if a couple had $300,000 in savings, the spend down amount would be $162,600. The applicant would then have $2,000 and the spouse $137,400.
Let’s say that Dad and Mom have $120,000 in savings. They must spend $58,000, leaving Dad $2,000 and Mom $60,000. That is what she’ll have left of their life savings if they follow the nursing home advice.
How can a lawyer help?
We will tell you that ALL of their life-savings can be saved for Mom or the family. (Except attorney fees, of course.)
The nursing home may tell you Dad needs a guardian, so you have to go to probate court. Then the probate court would tell you how to spend the money. (A good part would go to lawyer’s fees and court expenses.)
About 90% of the time our families avoid the probate court – and all that time and expense – and have Dad authorize Mom and you to be his Agents by a power of attorney.
But, what about the application? It’s not just writing information on a four page form. You must supply “documentation” proving everything you write down. You must provide documentation of all assets. Talk to many nursing home folk and they will tell you, that your first application for Medicaid may be rejected because you made some mistake. Many, perhaps most are rejected because of inadequate documentation, unreported assets, incomplete spend down or gifting of assets within 5 years of application.
You can expect that nobody at Department of Health and Human Services, the Medicaid department, will answer your questions. They are not there to answer questions. There job is to review your application and accept it or deny it.
When your application is denied you have to start over. That’s why the nursing home is on your back about paying the next month in advance, or going to probate court, or getting Medicaid application in fast as possible.
It takes many families three months to get a good application in. It goes like this. The first one is filed. Four weeks later the Medicaid worker contacts you by mail, delivered to the nursing home. You find it in the drawer next to the bed. You happened to find it, nobody told you it came last week. (Sometimes it is not this quick, because the Medicaid Department has been losing applications!) The worker asks for more information. It might be about life insurance policies, or other “unknown” assets. It takes you two weeks to get the information. A week later the worker says “not good enough.” She denies the application and you have to re-file.
When we file an application it is complete. We can often get Medicaid coverage the next month. If we cannot cover the next month’s bill through the application, then we go for PEME (pre-eligibility medical expense). We do not have our clients pay the nursing home in advance. We save that money for Mom or the family.
So, what do we offer to explain our value?
1. The spend down money does not go to the nursing home, but stays in the family.
2. A good application is quickly filed. The sooner we get it in, the sooner Medicaid will start paying the bill.
3. You have no stress dealing with Medicaid workers or the nursing home business office. You refer all questions to us.
4. You have more time with Dad or whoever you have in the nursing home. (They need you there. A nursing home is not a safe place without an “on duty” patient advocate.) And finally:
Hire us and You will not lose your home to the government
They don’t tell you at the Medicaid department that you can keep your home and be on Medicaid, but after you die they want your estate to sell it and give the money to the government as payback. They call it “estate recovery.”
Our clients avoid Michigan’s Medicaid estate recovery. The home stays in the family.
OK, so what is an average fee?
Most lawyers charge a flat fee. After all, how could you pay the lawyer’s bill after he got you Medicaid? Your money, except $2,000, is all gone! Paying a lawyer to help you with the application is legitimate “spend down.”
With a flat fee you have a fixed cost. You know what your attorney fees will be at the start. The benchmark we use for an average application is one month’s nursing home bill. Some applications are much more complicated than average. The fee could be 50% higher. Some are much simpler. We adjust accordingly.
Note, sometimes we advise you that we should to go to probate court so that the at-home spouse can get more income or a larger share of the couple’s life savings. A judge can allow the community spouse to have more income or assets than the Medicaid Department’s standard allowance. This is not an ongoing Guardianship. It is a one time only hearing in the court. Fees for this process are in addition to the Medicaid application fee.
Not everybody needs us to file the application.
Can every nursing home Medicaid applicant benefit by having a lawyer handle the application? No. An applicant who has no property but a small savings account would have a simple application and the spend down might be complete merely through purchasing a complete funeral plan. One consultation with a lawyer may be enough for you to confidently file the application. This too is a service we gladly provide.
Hope this article helped you.
All the best,
Jim