1. Have authority to apply for the nursing home resident. Unless you have a power of attorney that authorizes application for government benefits you may need to petition the probate court to be appointed the resident’s guardian and conservator. When it comes to maximizing the savings allowed by Medicaid’s “loopholes” probate court can be both unfriendly and very expensive. Contact an experienced elder law attorney about your alternatives. The attorney may first need to determine if the resident has the mental clarity or “capacity” to sign legal documents. If the resident does not have “legal capacity” then probate court may be the only option.
2. Be Able to Prove What You Say Get a copy of the Medicaid application and be sure you have written proof for virtually everything you write down. Failure to provide adequate documentation will result in dismissal of the application. Consider these points:
a. Medicaid requires proof of all income, that includes employment, pension, social security, investment, rental etc.
b. Medicaid requires proof of all assets, whether they be countable or otherwise. A rule of thumb is that countable assets are those that must be spend down to $2,000. Exempt assets need not be spent down. These include homestead (to a maximum equity value of $585,000 unless the spouse lives there, then No Limit), one vehicle, prepaid funeral arrangements for the applicant, within limits, and life insurance limited to a face value of $1,500.
c. Medicaid requires proof of all insurance.
d. Medicaid requires proof of all “divestment” (giving away) of assets and income.
3. Spend Down: Do Not Divest Assets As a general rule spend down is allowed for payment of any bill for and purchase of property for the applicant or spouse. Keep documentation of spend down. Property may also be repaired or improved, e.g. a furnace can be repaired or replaced. See your experienced elder law attorney for advice on spend down.
Divestment of assets is very costly. Michigan Medicaid assesses a penalty period for the divestment of assets in the five years prior to application. In 2022 it imposes a full month penalty period for each $9,880 divested and fractions of a month for the amount less than a full $9,880. This penalty does not begin to run until the applicant has qualified for Medicaid by being in a nursing home and has no more than $2,000 in countable assets.
4. Disclose and Document Divestment Prepare to report any transfer of assets. If any asset – property, accounts, vehicles, etc. – have been divested within the five year look back, the transfer must be reported. The same is true of income. A rule of thumb is that if assets have been “divested” to anyone other than a spouse or disabled child Medicaid will impose a penalty period which is a period of time that Medicaid will not pay for nursing home care. Note that divestment means a transfer for less than “fair market value.” If grandfather has a 10 year old car worth $1,500 and sells it to granddaughter for $500, then that is a $1,000 divestment. If assets have been divested within the five years get proof of the asset, its value and the facts surrounding the transfer. Tax returns and bank accounts should be investigated for missing assets.
5. Plan to Apply Timely An application can be presented too early or too late. If it is too late Medicaid will not pay all the bills. Applying too early is more complicated. Application processing by the Department of Human Services often takes months. It can take weeks just for the application to be assigned. If the applicant has excess assets, technically even a dollar over, the application will be denied. That means that a nursing home may be owed three to five months and Medicaid will not pay. Do not apply before “spend down” is complete. An application can also be too early if the applicant divested assets within the five year lookback. Let’s say the applicant feared nursing home placement and so transferred $100,000 to his son, who was out of work and facing foreclosure. Four years later he had a stroke and he was in a nursing home. It might be better to wait until five years has passed and then apply for benefits. Never apply when there has been divestment until an experienced elder law has been consulted
6. Calculate the Community Spouse Asset and Income Allowance The spouse of a nursing home resident is permitted to retain half of the couple’s “countable assets” up to $137,400 (in 2022). The minimum asset allowance is $27,480. This is called the Community Spouse Resource Allowance (“CSRA”). The Community Spouse is permitted to keep all of his or her own income, which may be supplemented by the nursing home resident’s income. The spouse’s minimum income allowance is $2,288.75 per month. If the spouse has excess “shelter expenses” it can rise to a maximum of $3,435 per month. Shelter expenses include rent, mortgage, taxes, assessments and insurance payments. Medicaid rules are subject to change. See an experienced elder law attorney for timely advice on special rules that allow the spouse to retain all assets and seek a court order to keep all income.
7. Make a Good and Complete Application If you are doing the application yourself for the first time, you are strongly advised to have somebody with experience review it. You may have a nursing home employee or some other volunteer review the complete application you wish to submit. Understand that they do not work for you and are, in general, not responsible for mistakes in the application or for not telling options you do not know about such as the Community Spouse Resource Allowance. If you hire an elder law attorney to completely prepare the application then the lawyer is legally responsible for mistakes he or she may make. In addition to that protection you should expect to save more than the lawyer cost. As noted in paragraph 2 above, have and submit all proof documentation. Keep a separate and complete copy for your records. Have all additional and current financial information, not submitted with the application, organized and at hand so that you can immediately respond to a Medicaid demand for information.
8. Appeal Denial of Application If you are handling the Medicaid application yourself, plan for a denial and re-application. If the Michigan Medicaid Department denies an application, the applicant may appeal. This is done through a fair hearing, which is an informal proceeding before an administrative law judge. These hearings are limited to the question whether the Medicaid department followed its rules. The hearing is not a forum to complain about rude and inconsiderate workers or the unfairness or outrageousness of the rules. These hearings take months to schedule. Delays longer than half a year are not unusual. During the application and appeal process the nursing home is not getting paid and the nursing home may begin discharge procedures. Consultation with and representation by an experienced elder law attorney may be an option. Sometimes the lawyer will appeal and reapply at the same time. A good second application may stop the bills from piling up.
9. Plan beyond Medicaid – Estate Recovery The federal Medicaid law allows the government to take the recipient’s home and other property after death to reimburse the government for the nursing home bills it paid. This is called “Medicaid estate recovery.” Currently Michigan’s estate recovery claim is made through probate proceedings only. The claim can be avoided by timely action to avoid probate, which may be before or after the application. Once again consultation with an experienced elder law attorney is imperative.
10. Get Advice of an Experienced Elder Law Attorney An experienced elder law attorney can make sure that you meet the qualifications, preserve as much of your assets as possible, and get the application approved as quickly as possible. Please note that any attorney can claim to be an elder law attorney even if the attorney has no experience. A Medicaid nursing home application is not to be undertaken by somebody who is uninformed. Tens of thousands of dollars are at stake. It is ironic that many seniors will pay to have their taxes done to save a few dollars but will not seek competent assistance when their home and life savings are at risk. A prudent person will not rely upon the advice of a volunteer who has no risk if mistaken. An attorney who has taken years of law school, sat for and passed a grueling bar examination and who must take on additional study to be competent in Medicaid must be right in his or her advice and if not be liable for malpractice. And, on the last point all good attorneys have malpractice insurance, which means no risk for you(!).
Consider this thought if you are “doing it yourself.” An experienced Elder Law attorney can get spend down and application completed faster than inexperienced family members or friends. Let’s say you have money/savings to be spent down and maybe you might say “Why give money to a lawyer? It’s just an additional expense.” We found that many, many families went on their own, spent the money down and submitted an application. Then they got hit by the “gotcha.” The worker denies and closes the application because of “lack of documentation.” It might be one month of bank statements, or a letter of the value of a life insurance policy. This closure would often come 10 weeks after they filed the application. So they would have to start over!
We have often gotten an application filed in just six weeks. So if a client hired us on the 10th of the month we would get the application in at the end of the next month. The result? The client only paid for the month we were hired since the next month they were eligible.
Hope you found this helpful. Got questions? Give us a call at (248) 356-3500. Better yet, give us a call for a referral to a top-notch Elder Law attorney to help you with that Medicaid application.
All the best,
Jim